Citation Nr: 20053068 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 12-02 325 DATE: August 11, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from January 1979 to December 1982. These matters come before the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). These matters were previously remanded by the Board in March 2017 and October 2018. 1. Entitlement to service connection for an acquired psychiatric disability. To ensure that VA has met its duty to assist, remand is again necessary. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran contends that his psychiatric disability is due to his military service, including his hospitalization in 1982 during service. See Form 9 (January 2012); VA 21-4138 Statement In Support of Claim (October 2009). Initially, the Board recognizes that the RO has attempted to acquire the Veteran’s service treatment records (STRs) through the National Personnel Records Center (NPRC). See VA 21-3101 Request for Information (December 2009). In August 2015, the RO provided STRs that included an enlistment physical and other treatment records, including those of mental health inpatient treatment in August 1982. However, it appears that, although the RO made attempts to obtain the records through the NPRC, some remain outstanding as no separation physical, for example, is of record. No formal finding of unavailability of such records has been made, indicating the steps undertaken to obtain outstanding records. As these outstanding STRs are relevant to the outstanding service connection claim a remand is required to allow VA to obtain these potentially relevant records. Furthermore, the record shows that the Veteran was seen by the Princeton Vet Center. See VA Examination (May 2017). VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Although the May 2017 VA examination indicates that the Veteran provided a cover letter from the Vet Center, it has not been associated with the Veteran’s file and was not accompanied by any treatment/counselling records. Indeed, no Vet Center records are presently contained within the Veteran’s claims file. While the RO asked the Veteran to provide VA Form 21-4142 for Release of Records, it is noted that no such release is necessary for Vet Center records. Therefore, remand is again necessary to obtain these records via traditional process. See 38 C.F.R. § 3.159. Along the same lines, the record does not contain complete records from Salem VA Medical Center, where the Veteran was treated in 1983, 1985, 1988 and again in 2008. Most of the available records were submitted by the Veteran. Prior requests in April and June 2009 resulted in a hand-written note that that a negative response would be faxed from Archives. See VA 119 Report of Contact (June 2009). However, no such response is of record. The Veteran has also reported seeing Dr. L.J.M., and the record contains references to treatment by Dr. L.J.M., including several mental health outpatient notes by him in June 2008. A June 2008 VA treatment note provides that the Veteran had been seeing Dr. L.J.M., suggesting that treatment records by Dr. L.J.M. are also outstanding. These records should also be obtained on remand. See Sullivan, supra. Lastly with regard to records, review of VA treatment records reveals that non-VA treatment has been scanned into VISTA. See CAPRI (May 2017). On remand, attempts must be made to associate with the claims file all scanned treatment records regarding the Veteran. While the Veteran has undergone a VA examination since filing his new service connection claim, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examination report indicates review of the Veteran’s file, but does not note or address the Veteran’s two-month in-service mental health hospitalization from August 1982 to October 1982, immediately prior to his separation. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the medical opinion that “it is less likely than not that the veteran has a mental health condition that was caused by or incurred during military service nor significantly aggravated beyond its normal course by military service or any alleged events there,” highlights its misunderstanding of the question at issue. Specifically, the question of aggravation assumes that the Veteran had a pre-existing mental condition, which the record does not show. See STR (August 2015) (December 1978 Enlistment Physical Examination). Even if the Veteran did have a pre-existing disability, the question would be as to aggravation generally, not as to whether it was significant or not. Thus, a remand, for a new VA examination is necessary. The Board notes that there is a private medical opinion, dated in May 2017, concluding that the Veteran struggles with PTSD due to military sexual trauma. See Medical Treatment Record - Government Facility (August 2018). However, An adequate medical opinion must be “accurate and fully descriptive,” 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran’s prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, an opinion “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Nieves-Rodriguez, supra (“most of the probative value of a medical opinion comes from its reasoning”). An adequate medical examination report or opinion must also “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was “informed of sufficient facts upon which to base an opinion relevant to the problem at hand.” Nieves-Rodriguez, 22 Vet. App. at 303. Here, since the Veteran’s diagnosis of PTSD under DSM-V has not been established and the Veteran’s military sexual trauma has not been confirmed, the examiner’s opinion with no rationale has diminished probative value and is insufficient to award the benefit sought. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see Nieves-Rodriguez, supra. Given the missing STRs and medical treatment records as well as a need for a new VA examination, remand it warranted. The Veteran is reminded that, although VA has a duty to assist in the development of a claim, it is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190 (1991). Note, claimants are expected to keep VA apprised of their whereabouts and cooperate in the development of their claims. As remand is again warranted, the Veteran should be afforded the opportunity once again to provide information or evidence to support his claim for PTSD based on personal assault. 2. Entitlement to a TDIU. The Veteran’s claim for TDIU is inextricably intertwined with the Veteran’s claim for service connection. Thus, this consideration of claim is deferred pending the outcome of the claim for service connection here. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Send the Veteran notice required for PTSD claims based on personal assault, and allow time for a response. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms and/or treatment of any mental health symptoms, to include Dr. L.J.M. 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 complete STRs through official sources and potential repositories of such records to include, but not limited to, NPRC, the Department of the Army and the Records Management Center (RMC). All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 4. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and includes (a) the identity of specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Such notice should also inform the Veteran of alternative sources of evidence that may be submitted in place of his missing service records. 5. Obtain the Veteran’s VA treatment records for the period from May 2017 to the present and all the records from Salem VA Medical Center. 6. Obtain all treatment records from the VA Vet Center in Princeton, New Jersey. The request should indicate that VA is seeking the actual records and not a summary of the Veteran’s treatment or symptoms. Document all requests for information as well as all responses in the claims file. 7. Obtain copies of all documents in VistA imaging for inclusion in his claims file. 8. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The medical opinion should, among other things, include a discussion of the Veteran’s documented history and assertions, including the two-month mental health hospitalization in August 1982 in service. Obtain a complete medical history of symptoms, their onset, and treatment. Conduct a mental status evaluation. Then, opine on the following: (a.) Whether the Veteran has had a diagnosis of any psychiatric disorder (other than personality disorder) during the appeal period that began in October 2008. If yes, identify each disorder shown and date of onset. (b.) 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 a verified in-service stressor. To the extent that the stressor is based on an in-service personal assault, opine whether the evidence of record, including the lay statements, the Veteran’s service records, along with any other relevant evidence in the claims file corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. (c.) For any acquired psychiatric disorder other than PTSD, opine on whether it is at least as likely as not had its onset during active service or is otherwise related to an in-service injury, event, or disease. The examiner should address the documented in-service August to October 1982 mental health hospitalization. 9. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion 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. (Continued on next page) 10. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. P. 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.