Citation Nr: 18150485 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-50 531 DATE: November 15, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1975 to April 1995. This matter is on appeal from a July 2013 rating decision. The Board notes that the Veteran claimed entitlement to service connection for various psychiatric disorders, including depression, posttraumatic stress disorder (PTSD), and bipolar disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a psychiatric disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In consideration of the holding in Clemons, the Board has recharacterized the psychiatric claims on appeal into one issue as reflected above. In his August 2016 substantive appeal, the Veteran requested the opportunity to testify at a hearing before a member of the Board. A hearing was scheduled for October 2018; however, the Veteran did not attend. As no further communication from the Veteran with regard to the hearing has been received, the Board considers the request for a hearing to be withdrawn. Entitlement to service connection for an acquired psychiatric disorder is remanded. Although further delay is regrettable, the Board finds that additional development of the claim is necessary prior to appellate review. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, including depression, PTSD, and bipolar disorder. The Board notes that private and VA treatment records confirm that the Veteran has received various psychiatric diagnoses, including anxiety disorder, major depressive disorder, adjustment disorder, bipolar disorder, mood disorder, PTSD, and opioid abuse disorder in remission, during the pendency of this appeal. In May 2016, the Veteran submitted a letter from his private therapist, a licensed clinical social worker, who stated that the Veteran has a diagnosis of PTSD. In the letter, the therapist detailed the Veteran’s reported in-service stressors he experienced while serving as military police and a narcotics investigator, and his current symptoms, which include hypervigilance, suspiciousness, outbursts of anger, anxiety, and nightmares. The therapist opined that the Veteran’s current PTSD is due to his in-service stressors. The Veteran underwent a VA PTSD examination in July 2016. Upon examination, the VA examiner determined that the Veteran does not meet the criteria for a diagnosis of PTSD. However, the examiner confirmed diagnoses of depressive disorder, anxiety disorder, and opioid use disorder in remission. The examiner opined that the Veteran’s depressive disorder and anxiety disorder are less likely than not caused by or related to military service because there is no evidence that he had psychiatric problems in service and he did not seek treatment for his mental health issues until many years after service. The Board finds the VA examination and medical opinion inadequate. It does not appear that the examiner considered the Veteran’s credible lay assertions that his psychiatric disorders are related to the trauma he experienced during service. Instead, the examiner based her negative opinion solely on the lack of documented treatment during service or for many years after service. An opinion based on a lack of in-service treatment or diagnosis without consideration of a veteran’s competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Moreover, the examiner’s opinion does not consider pertinent evidence, such as the Veteran’s April 1995 separation examination in which he reported sleeping problems during service, or the May 2016 PTSD diagnosis and favorable nexus opinion provided by the Veteran’s therapist. Once VA undertakes the effort to provide an examination or opinion when developing a service connection claim, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand is required to afford the Veteran a new VA examination and medical opinion before the Board can render an informed decision on the claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matter is REMANDED for the following action: Schedule the Veteran for a VA mental health disorders examination with the appropriate medical professional to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder, to include PTSD. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all currently diagnosed acquired psychiatric disorders, including those diagnosed during the pendency of the appeal, even if currently resolved. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) If the examiner finds that a diagnosis of PTSD is warranted, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s PTSD is related to the Veteran’s claimed in-service stressor(s), or otherwise related to any other in-service event? (b) Is it at least as likely as not (50 percent probability or greater) that any other psychiatric disorder was incurred in or caused by the Veteran’s active duty service? The requested opinion must specifically consider and address: the April 1995 separation examination in which the Veteran reported sleeping problems during service; and the May 2016 letter from the Veteran’s therapist showing a diagnosis of PTSD attributed to his claimed in-service stressors. The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. Additionally, the examiner is advised that the Veteran is competent to report his psychiatric symptoms and history and such reports must be acknowledged and considered in formulating any opinion. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disorder and service. The examiner should set forth a complete rationale for the conclusion(s) reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel