Citation Nr: 20021489 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-08 020 DATE: March 26, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1985 to March 1986. After this period, he served in the National Guard without any additional period of active duty service. The Board denied the matter on appeal in September 2018. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2019 Order, the Court granted Joint Motion for Partial Remand (JMPR), vacated the September 2018 decision in part, and remanded the current issue on appeal back to the Board for readjudication in accordance with the JMPR. The Veteran claims his acquired psychiatric disorder is secondary to hearing loss and tinnitus. See August 2016 Application for Disability Compensation. The Veteran was afforded a VA examination in January 2014. However, as pointed out in the JMPR, while the examiner provided a negative nexus opinion, the examiner did not address aggravation, regarding the theory of secondary service connection due to service-connected tinnitus and hearing loss. Therefore, the examination is inadequate. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Subsequent to the issuance of the JMPR, the Veteran submitted evidence of military sexual trauma (MST); and therefore, the examiner should also provide rationale which addresses the new lay evidence provide by the Veteran. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Contact the Veteran and request a more detailed description of the alleged personal assault and sexual assault, to include specific information regarding the incident such as date, location, and name of the assailant, as well as any additional corroborating evidence of the assault. Notify the Veteran of all kinds of evidence that may be used to substantiate his claim. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. See 38 C.F.R. § 3.304(f). 3. Undertake any necessary development to independently verify the in-service sexual assault described by the Veteran. Development should include contacting the United States Army and Joint Services Records Research Center (JSRRC), using any detailed information provided by the Veteran upon request after this remand, as well as any information available in the Veteran’s military personnel records. 4. The agencies contacted should provide any available information that might corroborate the Veteran’s alleged in-service stressor of personal sexual assaults from his periods of service. Any additional action necessary for independent verification of the alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. 5. After all records and/or responses regarding the Veteran’s alleged stressful events have been associated with the claims file, the regional office should schedule the Veteran for a VA mental health addendum opinion, with a psychiatrist or psychologist, to determine the nature and etiology of any psychiatric disorder found to be present. The claims file should be made available to the examiner for review, and a notation to the effect that this review took place should be included in the report. The examiner is asked to offer an opinion addressing the following questions: (a.) Identify all psychiatric disorders present at any point during the period on appeal; (b.) For each mental disorder diagnosed, is it at least as likely as not (50 percent or greater probability) that such disorder was manifested in service or is otherwise medically related to service. In making this assessment, the examiner should consider and discuss the Veteran’s lay evidence, to include the account of MST; and (c.) For each mental disorder diagnosed, is it at least as likely as not that such disorder was caused or aggravated by the Veteran’s service-connected hearing loss and/or tinnitus. In making this assessment, the examiner should consider and discuss the Veteran’s September 2016 e-mail statement that hearing disabilities make him depressed. The examiner must include a complete rationale with all opinions. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, 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.