Citation Nr: 20005709 Decision Date: 01/23/20 Archive Date: 03/06/20 DOCKET NO. 16-19 197A DATE: January 23, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to June 1983 and in November 1990. The Veteran additionally had service in the Air National Guard. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. At that time, the Veteran waived consideration by the agency of original jurisdiction (AOJ) in the first instance of any additional evidentiary submissions. The Board has recharacterized the psychiatric issue as a claim for an acquired psychiatric disorder, generally. The Veteran cannot be required to know whether the symptoms he is claiming service connection for are related to PTSD or another psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran, and his representative, contends that his PTSD stems from his first active duty period. Specifically, the Veteran testified that his PTSD is related to a hazing event (described as a “sea leg” initiation) circa December 1979 aboard the USS Forrestal. See Hearing Transcript at 3 (May 2019). In support of the argument, the representative directs the Board to various pieces of evidence, to include in-service treatment records, lay statements, and a private medical opinion. For the following reasons, the Board finds that remand is necessary. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for PTSD requires: (1) Medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association ‘s Diagnostic and Statistical Manual for Mental Disorders (DSM-5). 38 C.F.R. § 4.125. This applies to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014 (i.e., have not yet been certified to the Board). See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Private medical opinion, dated April 2018, reflects that the Veteran was diagnosed with PTSD and that his PTSD is related to both his active service (from June 1979 to June 1983) and from his service in the Air National Guard. In support of these conclusions, the examiner referenced and discussed the Veteran’s lay statements, to include statements related to his “sea leg” initiation circa December 1979. The Board finds the April 2018 private medical opinion is inadequate to support the claim. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). In determining the adequacy of a medical examination or opinion, an examination or opinion is considered adequate, “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘“evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991))). Therefore, when a medical examination or opinion is provided, the clinician must support the conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Id. at 124-25. In this case, the private medical opinion does not reflect that it was based upon consideration of the Veteran’s prior medical history. Indeed, the medical opinion reflects statements that appear to have been derived from the Veteran’s reported history without any consideration of the prior medical history. For instance, the medical opinion fails to account for the absence of competent, credible evidence of psychiatric symptoms or disorder during the Veteran’s active service or for decades thereafter in the Air National Guard. In this regard, the Veteran’s active duty separation examination report, dated in May 1983, reflects that the Veteran was evaluated as having a clinically normal psychiatric. Air National Guard entrance examination report, dated in August 1984, again normal clinical evaluation of the psychiatric. Additionally, in the corresponding report of medical history, the Veteran denied having, or ever having, frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort; the Veteran, furthermore, described his overall health as “excellent” and denied that he was taking medication, prescription or non-prescription. The record additionally reflects numerous Air National Guard medical examinations, report of medical histories, medical certificates, and medical questionnaires, starting in 1984 and spanning decades, in which the Veteran was either assessed with no, or denied, mental disorder or associated symptoms. See, e.g., STR – Medical (September 1997) (report of medical history reflecting that the Veteran (1) described his present health as “excellent,” (2) denied taking medication, and (3) stated that he did not have, or ever had, frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort). Lastly, VA treatment records, dated in 2012, reflect that the Veteran has several acquired psychiatric disorders stemming from different sources. See CAPRI (May 2012). As the examiner, here, appears to have relied on the reported history by the Veteran without consideration of his prior medical history and examinations, the Board finds the April 2018 private medical opinion is inadequate to support the claim. Next, the Board finds that there is credible supporting evidence that the claimed in-service stressor occurred, described as a “sea leg” initiation aboard the USS Forrestal. First, military personnel records show that the Veteran was assigned to the USS Forrestal from September 1979 to April 1981. Next, service treatment records reveal that the Veteran complained of pain to the lower extremities in November 1979, December 1979, and January 1980. Further, an eyewitness statement, dated in May 2019, reflects a first-hand account of the Veteran’s “sea leg” initiation. Hence, there is credible supporting evidence of the claimed stressor in additional to Veteran’s statements and testimony. Given the above, there is evidence suggesting a potential relationship between the Veteran’s acquired psychiatric disorder and his military service, which warrants remand for a VA examination and medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). VA has not yet obtained a medical opinion or examination in this matter. The record additionally reflects that the Veteran is receiving Social Security Administration (SSA) benefits that may be related to his acquired psychiatric disorder. These records are considered federal records for duty to assist purposes. Appropriate attempts to obtain the records should be made. Lastly, at the May 2019 Board hearing, the Veteran alluded to outstanding relevant medical treatment records from Eastern Wellness Center. A review of the record reveals that VA only obtained a 2013 initial consultation from Eastern Wellness Center; as a result, a remand is also needed to obtain these potentially relevant identified outstanding private treatment records. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matter is REMANDED for the following actions: 1. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his mental health symptoms and disorders, to include from Dr. Harris and Eastern Wellness Center, Dr. M. Register, and S. Dudley (LCSW). Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records for the period from December 2019 to the Present. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any mental disorder to include PTSD. (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the conceded in-service stressor, described as a “sea leg” initiation aboard the U.S.S. Forrestal. (b) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include as due to conceded in-service stressor, described as a “sea leg” initiation aboard the U.S.S. Forrestal. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.