Citation Nr: 20003290 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-41 611 DATE: January 14, 2020 REMANDED 1. Entitlement to service connection for depression, including as secondary to service-connected Peyronie’s disease, is remanded. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service in the Army from March 1976 to November 1985 and from November 1990 to January 1993, and additional service from May 1993 to February 1995. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered these issues in a September 2018 decision, when it denied entitlement to service connection for depression and PTSD. The Veteran appealed the September 2018 Board decision to the Court of Appeals for Veterans Claims (Court). In an April 2019 decision, the Court granted a joint motion for partial remand (JMR), which vacated the Board decision as to the issues of entitlement to service connection for depression and PTSD and remanded them. The Board notes that two unanswered FOIA requests are of record. The first FOIA request, dated July 16, 2014, requested a copy of an April 2014 Audiology VA examination. This examination was provided in connection with claims for entitlement to service connection for tinnitus and bilateral hearing loss. Entitlement to service connection for tinnitus has since been granted, and the Veteran has abandoned his claim for entitlement to service connection for bilateral hearing loss. See March 2019 JMR. The second FOIA request, dated April 8, 2015, requested a copy of a February 2015 Male Reproductive System Conditions VA examination. This examination was provided in connection with a secondary service connection claim for erectile dysfunction, which has since been granted. Accordingly, while copies of the requested examinations were not provided to the Veteran and his representative, there is no prejudice to the Veteran by the Board’s adjudication of the issues currently on appeal. Initially, the parties to the JMR agreed that the Board should determine whether the medical evidence of record is adequate to adjudicate the claims. The parties noted that the Appellant’s claim was certified to the Board after August 4, 2014, and therefore provisions of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) are applicable to the case. The April 2013 VA examiner assessed the Veteran’s condition prior the August 2014 change in law and under the previous version of the DSM. The parties suggested that a new examination might be necessary. The Board agrees and finds that a new examination is necessary to adjudicate the claims on appeal, using the diagnostic criteria of the DSM-5. The parties to the JMR also agreed that the Board failed to consider whether the Veteran’s depression is secondary to his service-connected penile curvature with erectile dysfunction. The Veteran submitted a March 2016 private medical opinion which weighs in favor of this theory. The Veteran has not been provided a VA medical opinion regarding his depression. The March 2013 VA examiner only diagnosed the Veteran with a personality disorder and did not address the documented diagnoses of depression and anxiety in the VA medical records. The examiner also did not address the argument that the Veteran’s depressive symptoms have been aggravated by his service-connected Peyronie’s disease. On remand, the VA examiner should discuss whether the Veteran has a current diagnosis of depression and/or anxiety. If so, the examiner must opine as to whether any acquired psychiatric disorder is related to the Veteran’s service and/or to his service-connected penile curvature with erectile dysfunction. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the nature and likely etiology of each acquired psychiatric disorder demonstrated during the appeal period or in proximity to the claim, even if currently resolved. The record and a copy of this Remand must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail. a) Identify all psychiatric disorders demonstrated during the appeal period or in proximity to the claim, even if currently resolved, utilizing the criteria of the DSM-5. If PTSD, anxiety disorder and/or depression is/are not diagnosed, then the examiner must provide a supporting explanation as to why such diagnosis or diagnoses is/are not appropriate. The examiner must discuss the October 2019 private Disability Benefits Questionnaire diagnosing depression and the VA medical records diagnosing PTSD, anxiety disorder, and depression. The examiner must address VA records of inpatient psychiatric treatment in June 2011, which show that the Veteran continued to report depressive and PTSD symptoms even while treated with Suboxone for his substance use disorder. b) If there is a verified stressor and the Veteran has a diagnosis of PTSD, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the PTSD is etiologically related to a verified in-service stressor. Rationale must be provided for the opinion proffered. c) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder other than PTSD is causally related to or aggravated by the Veteran’s service. If not, the examiner should provide an opinion as to: (i.) whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder other than PTSD is causally related to the Veteran’s service-connected penile curvature with erectile dysfunction; and if not, (ii.) whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder other than PTSD is aggravated beyond natural progression by the Veteran’s service-connected penile curvature with erectile dysfunction. Rationale must be provided for each opinion proffered. The examiner should consider and address the documentation of psychiatric symptoms in the Veteran’s STRs and the March 2016 private examination and opinion. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The   appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Frasch, 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.