Citation Nr: 19157366 Decision Date: 07/24/19 Archive Date: 07/24/19 DOCKET NO. 11-01 402 DATE: July 24, 2019 REFERRED ISSUE The issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a psychiatric condition due to treatment furnished by VA, was raised by the Veteran in multiple statements, including in December 2009 and January 2015. A section 1151 claim constitutes a separate and distinct claim for VA benefits. Anderson v. Principi, 18 Vet. App. 371, 376-77 (2004). Accordingly, that claim is not included within the scope of the instant appeal. That issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder and schizophrenia, to include as secondary to his service-connected low back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1971 through March 1972 and August 1973 through August 1983. This matter has come before the Board on several occasions. In relevant part, the Board remanded the above-listed issue for further development in November 2017. As discussed below, though the requested development was completed, it was not completed adequately. The matter must be remanded for full compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2017 remand noted the Veteran underwent a psychiatric evaluation while receiving inpatient hospital treatment in November 1982 and directed the Regional Office (RO) to obtain a copy of the psychiatric evaluation. The remand directives instructed the RO to request copies of all mental health records and make as many requests as necessary. The RO was directed that the efforts may only end if it was concluded the records did not exist or that further efforts to obtain the psychiatric evaluation would be futile. Although the RO requested “all mental health records” to include “a psychiatric evaluation in or around December 1982,” and received a response that all available records had been sent for scanning in December 2018, the November 1982 psychiatric evaluation is not part of the claims file. Additionally, the claims file contains no determination that the psychiatric evaluation is unavailable. The November 2017 Board remand instructed the RO to obtain a VA medical opinion specifically addressing the Veteran’s various diagnoses. Although the July 2018 VA examiner addressed the Veteran’s diagnosis of chronic schizophrenia, in full remission, there is no opinion addressing his diagnosed adjustment disorder or generalized anxiety disorder, both diagnosed in 2014. The Veteran has presented two alternative theories of entitlement. First, that his psychiatric disability was caused or aggravated by his service-connected low back disability, and second, that his psychiatric disability was caused by an in-service traumatic brain injury. Although the July 2018 VA examiner noted that the Veteran’s schizophrenia was neither caused nor aggravated by his service-connected low back disability, the examiner provided no opinion as to whether any other diagnosed acquired psychiatric disability (i.e. adjustment disorder or anxiety disorder) was caused or aggravated by his low back disability. Additionally, service medical records reflect the Veteran was experiencing moderate and significant emotional overlay with regard to his back injury in November 1982. However, the examiner did not address this record at all in the opinion. The examiner noted the Veteran’s lay reports of experiencing a traumatic brain injury in approximately 1973 or 1974 following a car wreck but noted there were no service medical or personnel records to assert that contention. However, the Veteran was assessed for a concussion in August 1974 and was treated for a laceration to his head after being found in a drunken stupor. Accordingly, as there is evidence the Veteran may have experienced a head injury and concussion while on active duty service, an opinion is warranted. The matter is REMANDED for the following action: 1. Obtain records of any inpatient treatment at Tripler Army Medical Center in 1982. As inpatient records are often maintained separately from a service member’s outpatient records, a search must be made for inpatient hospitalization records from November-December 1982. Document all requests for information as well as all responses in the claims file, and a negative response must be provided if the records are unavailable, to include preparation of a memorandum of unavailability. 2. Obtain the Veteran’s VA treatment records for the period from June 2014 to the present. 3. ONLY AFTER the above-cited records have been obtained, to the extent possible, or it has been determined they are unobtainable or do not exist, obtain a VA medical opinion from the appropriate clinician or clinicians addressing the following questions: (a.) Identify all acquired psychiatric diagnoses present during the pendency of the appeal. If a prior diagnosis is no longer applicable, to include the 2014 diagnoses of adjustment disorder and generalized anxiety disorder, the examiner must explain why and reconcile any conflicting medical evidence of record. (b.) Then, for each diagnosed acquired psychiatric disability, the examiner shall address whether it is at least as likely as not (a 50 percent probability or greater) that the currently diagnosed acquired psychiatric disability was incurred in or a result of the Veteran’s active duty service. The examiner should specifically comment on the November 1982 psychiatric evaluation and notation that the Veteran was experiencing significant emotional overlay and the assertions the psychiatric condition is due to an in-service traumatic brain injury (see August 1974 concussion assessment). Please also see 2017 Board Remand extensively discussing the Veteran’s conflicting statements as to onset of psychiatric symptoms. The examiner is advised that although there are some notations of pre-service issues, the Veteran is presumed sound at entry, so no opinion on aggravation is needed. (c.) If it is determined that the Veteran’s acquired psychiatric disability is not directly related to his active duty service, the examiner shall address whether it is at least as likely as not that the Veteran’s acquired psychiatric disability was caused or aggravated by his service-connected low back disability. The examiner must specifically comment on the November 1982 service medical record reflecting he was experiencing significant emotional overlay with regard to his back injury. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.