Citation Nr: A19001553 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190313-6093 DATE: September 26, 2019 REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty from February 9, 1977 to May 25, 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2019 rating decision. The Board notes that the Veteran’s legacy appeal stemmed from a December 2018 rating decision. In January 2019, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). A higher-level review decision was issued in March 2019, and the Veteran submitted a notice of disagreement requesting direct review by the Board in July 2019. 84 Fed. Reg. at 181 (to be codified at 38 C.F.R. § 20.202). The Veteran initially sought service connection for mental condition and his claims folder references diagnoses of anxiety, depression, and inadequate personality disorder. However, what constitutes a claim is not limited by a lay veteran’s assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The record raises the issue of service connection for an acquired psychiatric disorder. Therefore, the Board has recharacterized the issue more broadly. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran was afforded a Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire in December 2018. The examination report indicates that the Veteran has or had a mental disorder diagnosis of “Inadequate Personality Disorder” and that the classification is no longer in use. In terms of the Veteran’s level of occupational and social impairment with regards to his mental diagnosis, the examination report states that there is no mental disorder diagnosis. The examination report also provides that the Veteran is prescribed Paroxetine by his family doctor, whom he sees once a year and that he saw a psychologist two or three times in the past 6 years. The examination report further indicates that for the Veteran’s claimed condition of “mental condition” there is no diagnosis because there is no pathology to render a diagnosis. The corresponding December 2018 medical opinion states that the Veteran’s claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the Board finds that the medical opinion is inadequate to make a fully informed decision on the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The medical opinion indicates that the Veteran reported his symptoms began right after his separation from service as he found out his spouse was cheating on him. The medical opinion also states that when the examiner asked the Veteran if stressors in the service caused his mental health condition, he stated that it did not help. The medical opinion is inadequate as it does not discuss the Veteran’s in-service diagnosis of inadequate personality disorder as defined in the DSM-II and recommendation of discharge as outlined in a May 1977 Statement to the Commander. In terms of anxiety, the medical opinion provides that the Veteran scored in the low range on a screening measure. For depression, the Veteran scored in the minimal range according to the medical opinion. The medical opinion states that the Veteran’s test results and his statements do not support a mental condition of anxiety or depression. The medical opinion is inadequate as it fails to reconcile the finding of no diagnosis of anxiety or depression with the fact that the Veteran was actively receiving mental health treatment and prescription medication for what is characterized as anxiety per his private treatment records. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Lastly, the medical opinion states that even if the Veteran has a mental health diagnosis, his symptoms could be due to his wife’s infidelity and subsequent divorce and not issues during his time in the Air Force which was limited to four and a half months. The medical opinion is inadequate due to its use of speculative language that the Veteran’s symptoms “could” be due to marital issues and not his active service. Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (a medical opinion is speculative when it uses equivocal language such as “could” or “might,” without any other rationale or supporting data). Therefore, the Board finds that a new VA examination is necessary to fully address the nature and etiology of the Veteran’s claimed acquired psychiatric disorder. The Veteran’s claims folder contains private treatment records concerning his mental health treatment. The Veteran was seen by Dr. DeRubeis as a new patient in January 2002. It was noted that his former prinmary care physician was Dr. Chagan. In March 2002, it was noted that the Veteran had been taking Paxil for anxiety and depression for over two years. Thus, as it appears that Dr. Chagan had been treating the Veteran for psychiatric symptoms prior to 2002, his complete treatment records must be obtained. As the Board finds that pre-decisional duty to assist errors have been committed, the case must be remanded to the AOJ with instructions to correct the errors. The matter is REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s complete treatment records from Dr. Chagan, as well as his updated treatment records from Michael DeRubeis, M.D. 2. After the above development is completed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. (a.) The examiner must identify all current acquired psychiatric disorder(s) found to be present. (b.) If no current acquired psychiatric disorder can be identified, the examiner should specifically comment on the propriety of the Veteran’s prior diagnoses of anxiety and prescription for psychiatric medication. (c.) For each diagnosed acquired psychiatric disorder, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to an in-service injury, event, or disease. In providing this opinion, the examiner should acknowledge and consider the Veteran’s service personnel records showing an in-service diagnosis of inadequate personality disorder as defined in the DSM-II and recommendation of discharge, as well as his April 1977 separation examination showing complaints of frequent trouble sleeping, depression or excessive worry, and nervous trouble. (d.) If the Veteran is diagnosed with a personality disorder and an additional acquired psychiatric disorder, the examiner must opine whether the acquired psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mussey, 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.