Citation Nr: 18153620 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-40 262A DATE: November 29, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), a depressive disorder, and/ or an anxiety disorder is remanded. Entitlement to service connection for the purpose of establishing eligibility to treatment under 38 U.S.C. 1702 is remanded. The Veteran had active service from February 1966 to December 1969. This matter is before the Board of Veterans Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a “request to reopen” his claim for PTSD in August 2009. This document is properly interpreted to be a notice of disagreement. Additionally, the claim for entitlement to service connection for the purpose of establishing eligibility to treatment under 38 U.S.C. 1702 was denied by the RO in a decision of January 2013. When the matter was previously before the Board in September 2014 when it was remanded to provide the Veteran with a statement of the case (SOC) for his PTSD appeal. A SOC was issued in compliance with the prior remand directive in October 2014. The SOC found there was new and material evidence, but continued the denial of service connection for PTSD and treatment under 38 U.S.C. 1702. As no final rating decision had been issued for this issue, the Board will address the claim for entitlement to a psychiatric disorder on a direct basis. The Veteran had requested a hearing regarding this claim on his Form 9 filing, but cancelled the February 2018 hearing. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, a depressive disorder, and an anxiety disorder. The Veteran has expressly filed a claim of service connection for PTSD. The evidence of record contains diagnoses of acquired psychiatric disorders other than PTSD, to include major depressive disorder and symptoms related to anxiety. See July 2011 Clinical Update from Vet Center, the issue on appeal has been broadened to encompass entitlement to service connection for an acquired psychiatric disorder, to include PTSD, a depressive disorder, and an anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Post-service clinical records show that the Veteran has regularly been treated at his local VA Center for PTSD and a major depressive disorder and has expressed symptoms of anxiety. Upon VA examination in January 2013, it was determined the Veteran did not have PTSD, but rather had a major depressive disorder, and that this disorder was less likely than not related to his service; the examiner failed to provide any rationale to support the conclusion. The examiner also failed to address the Veteran’s post-service treatment records from December 2005 which show that the Veteran’s depression was due to his other health problems. Service connection has been established for a for a lumbar spine disability and related conditions. Though the 2013 examiner provided a negative opinion regarding direct service connection for the diagnosis of a Major Depressive Disorder, the opinion did not discuss secondary service connection. As a remand is required for further development. 2. Entitlement to service connection for the purpose of establishing eligibility to treatment un 38 U.S.C. 1702 is remanded. Service connection claims for treatment purposes only are considered if compensation is denied, and as the claim for service connection for a psychiatric disorder is being remanded herein, the two psychiatric claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, adjudication of the Veteran’s claim for service connection for treatment purposes only, under 38 U.S.C. § 1702, must be deferred pending the outcome of his service connection claim. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to his claimed disabilities. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. The most recent VA records are dated from January 2018. 2. Furnish to the Veteran with a notice of the amended PTSD regulations and the new evidentiary requirements for substantiating a claim for PTSD, specifically 38 C.F.R. § 3.304 (f)(3). 3. After obtaining all outstanding records, return the claims file, to include a copy of this remand, to the January 2013 examiner for an addendum opinion. If the examiner who drafted the January 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: a) The examiner should determine whether the Veteran currently has or has had PTSD at any point relevant to his claim (i.e. February 2009) even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. If PTSD is diagnosed at any point during the appeal period, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran’s stressor(s) and must specifically address whether his identified stressor(s) are related to a fear of hostile military or terrorist activity; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressor(s). (b) The examiner should identify all diagnoses of acquired psychiatric disorders other than PTSD, at any point relevant to his claim (i.e. since February 2009), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. (c) For each diagnosed acquired psychiatric disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) such acquired psychiatric disability was related to the Veteran’s military service (d) The examiner should also indicate whether each diagnosed psychiatric disorder is at least as likely as not caused or aggravated by the Veteran’s service-connected conditions, to include bilateral hearing loss, lumbosacral strain, radiculopathy, tinnitus, and peripheral neuropathy. A complete list of the Veteran’s service connected disabilities should be provided to the examiner. The examiner should consider all pertinent evidence of record, including lay statements and medical records. A complete rationale must be provided for all opinions. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Middleton, Associate Counsel