Citation Nr: 20056640 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 17-29 537 DATE: August 27, 2020 REMANDED Service connection for an acquired psychiatric disorder is remanded. Service connection for a psychosis for the purpose of establishing eligibility for VA treatment only, under the provisions of 38 U.S.C. § 1702, is remanded. REASONS FOR REMAND The Veteran had active duty service from May 8, 2012 to June 27, 2012 in the United States Army. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2019, the Veteran and his father presented testimony at a Travel Board hearing at the AOJ before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file.   1. Service connection for an acquired psychiatric disorder is REMANDED. 2. Service connection for a psychosis for the purpose of establishing eligibility for VA treatment only, under the provisions of 38 U.S.C. § 1702, is REMANDED. First, in September 2018 and September 2019, the Veteran identified relevant, outstanding private treatment records. That is, in September 2018, the Veteran completed and signed a VA Form 21-4142 (Authorization and Consent to Release Information to the the VA). In September 2018 and September 2019, the Veteran identified the private providers and listed their respective contact information in VA Forms 21-4142a (General Releases for Medical Provider Information to the VA). He identified treatment for his psychiatric problems through the Augusta University Health Medical Center from December 2015 to September 2018. He also identified treatment for his psychiatric problems at Serenity Behavioral Health from June 2012 to August 2019. The Board is cognizant that in a September 2019 “Medical Records Request Reject Notice,” the AOJ rejected the Veteran’s request for private records, finding that the claims file was missing a signed medical authorization form from the Veteran – a signed VA Form 21-4142. This is incorrect. The Veteran completed and signed this form in September 2018. However, it is noted that a completed VA Form 21-4142 expires one year from the date the claimant signs it. In any event, VA is required to make reasonable efforts to obtain all “relevant” records, including private psychiatric treatment records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). “Reasonable efforts” will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). As such, a remand is required to allow VA to obtain a new authorization (VA Form 21-4142) from the Veteran and then request both sets of private psychiatric treatment records previously identified by the Veteran. Second, on multiple occasions during the course of the appeal, the Veteran has reported applying for and receiving Social Security Administration (SSA) disability benefits since April 2013 due to his bipolar disorder. See e.g., July 2015 Veteran statement; August 2013 VA psychological examination; and February 2014 Aiken-Barnwell Mental Health Center records. It appears he has applied for SSA disability benefits due to the functional impairments caused by his bipolar disorder, which is clearly relevant to the current appeal. VA is required to obtain relevant federal records that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist a claimant in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). However, VA need only obtain “relevant” SSA disability records, which, under 38 U.S.C. § 5103A, are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). This is the case here. Therefore, VA must make as many requests as necessary to obtain the Veteran’s “relevant” SSA records to include the complete SSA decision and accompanying medical records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Third, a VA addendum opinion is necessary to properly address whether it is “undebatable” or “obvious” or “absolutely certain” that a bipolar or other psychiatric disorder (1) existed before entrance into service (2) and was not aggravated during service beyond the natural progress of the disease. See 38 U.S.C. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board acknowledges that the AOJ secured an earlier August 2013 VA psychological examination and opinion for the acquired psychiatric disorder issue on appeal. However, this VA medical opinion, although probative, is not fully adequate. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the Board cannot make a fully-informed decision on the acquired psychiatric disorder issue because the previous August 2013 VA psychological examiner did not address the proper standard for aggravation of a preexisting condition. That is, the August 2013 VA psychological examiner opined that although the Veteran’s bipolar disorder, NOS, preexisted his military service, it is “less likely as not” that his bipolar disorder, NOS was permanently aggravated by his military service. A VA examination in this instance should not use the language “at least as likely as not” standard because it is equivocal language. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993) (holding that anything less than absolute certainty in a medical opinion was not sufficient to constitute clear and unmistakable evidence to rebut VA’s presumption of soundness). Here, the AOJ should have asked the VA examiner to opine whether it was “undebatable” or “absolutely certain” that the Veteran’s psychological disorder both preexisted and was aggravated during service. Therefore, the AOJ must obtain a VA addendum opinion. If the same August 2013 VA psychological examiner is not available, another qualified VA clinician will provide the addendum opinion. Another VA mental health examination for the psychiatric disorder issue is not necessary unless the VA examiner specifically requests one. Fourth, because a decision on the issue of service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of service connection for a psychosis for the purpose of establishing eligibility for VA treatment only, under the provisions of 38 U.S.C. § 1702, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, a remand of these intertwined issues is required. This matter is REMANDED for the following action: 1. Ask the Veteran to complete a new, signed VA Form 21-4142 (Authorization and Consent to Release Information to the VA) – the previous VA Form 21-4142 was completed in September 2018, more than one year ago. Thereafter, make two requests for the authorized private psychiatric treatment records listed below, unless it is clear after the first request that a second request would be futile. The Veteran is also asked to provide any of the above private psychiatric treatment records himself, if he has them in his possession. (a.) Augusta University Health Medical Center records dated from December 2015 to September 2018. (b.) Serenity Behavioral Health treatment records dated from June 2012 to August 2019. (The Veteran previously identified the above private providers and listed their respective contact information on September 2018 and September 2019 VA Forms 21-4142a (General Releases for Medical Provider Information to the VA)). 2. Request from the Social Security Administration (SSA) all records associated with the Veteran’s application for SSA disability benefits. In particular, the AOJ should request copies of any SSA disability determination and all associated medical records. Document in the claims file all requests for information from the SSA as well as all responses from the SSA. 3. After completion of steps 1 – 2, obtain a VA addendum opinion from the August 2013 VA psychological examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion. Only if deemed necessary by the VA examiner is another VA mental health examination necessary. Access to the electronic claims file must be made available to the VA examiner for review. The VA examiner should address the Veteran’s relevant lay assertions, and if necessary, address whether the Veteran’s lay assertions are consistent or inconsistent with his medical history and clinical data. Finally, the VA examiner must provide a clear explanation for the medical opinion. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a.) Is it “undebatable” or “absolutely certain” that the Veteran had a psychiatric disorder that preexisted his period of active duty service? (b.) For each psychiatric disorder that preexisted the Veteran’s period of active duty service, the examiner should state whether it is “undebatable” or “absolutely certain” that there was no increase in disability during service? (c.) If there was an increase in disability for a psychiatric disorder during service, is it “undebatable” or “absolutely certain” that any increase in disability was due to the natural progress of the preexisting psychiatric disorder? (d.) If the Veteran has a current psychiatric disorder that is totally unrelated to any psychiatric disorder that preexisted his service, is it at least as likely as not (i.e., 50 percent or more probable) that this current psychiatric disorder manifested during service or is otherwise causally or etiologically related to his active duty service in May and June of 2012? (e.) In answering the questions above, the VA examiner is advised of the following: • Two years prior to service, in May 2009, the Veteran was hospitalized at Riverwoods Hospital for a nervous breakdown. This occurred in the context of his grandfather’s death and marital problems with his wife. According to the May 2009 and June 2009 private hospital records, he was experiencing hallucinations, delusions, and suicide ideation. It was noted he thought he was “Jesus” or a prophet. He was wandering the streets and drained his wife’s bank account. He was diagnosed with a bipolar disorder. From May 2009 to December 2009, private GRN community service progress notes document the Veteran undergoing group and individual psychotherapy for his bipolar disorder. He was prescribed psychiatric medication - Depakote. It appears his condition improved. He eventually stopped taking his medication. • Service treatment records (STRs) and service personnel records (SPRs) did not note any psychiatric disorder upon enlistment into service at the Veteran’s November 7, 2011 enlistment examination. However, according to subsequent STRs / SPRs, a short time after he began basic training in May 2012, he experienced delusions, anxiety, hallucinations, pressured speech, paranoia, psychosis, rapid thoughts, agitation, grossly impaired judgement, and irrational fear. He reported difficulty adjusting to the military environment. He was diagnosed with bipolar I disorder, manic and severe, with psychotic features. During service, he was hospitalized for his bipolar disorder on an inpatient basis in May 2012, improved for a little while, but was again hospitalized as an inpatient in June 2012. He was treated with psychiatric therapy and multiple psychiatric medications. In a June 23, 2012 STR psychology clinic note, several days before discharge, his bipolar I disorder was assessed as a “recurrent manic disorder in partial remission.” • In STRs and SPRs, military clinical personnel determined on multiple occasions that the Veteran’s bipolar disorder existed prior to service (EPTS). His military supervisors determined that had the bipolar disorder been identified at enlistment in November 2011, it would have precluded his induction and enlistment into the Army. Therefore, in June 2012, he received an administrative discharge due to failure to meet the medical procurement standards of the military. • With regard to lay evidence, the VA examiner is advised the Veteran contends his preexisting bipolar disorder was aggravated or permanently worsened during his period of active duty service in May and June of 2012. The Veteran and his father testified at the August 2019 Travel Board hearing that prior to enlistment into service in 2011, the Veteran was no longer experiencing any symptoms of his previously diagnosed bipolar disorder. He says he felt normal. He felt his bipolar disorder had “resolved.” However, a few days into basic training in May 2012, he underwent a great deal of stress, which permanently aggravated his bipolar disorder. He testified that during service he experienced insomnia, irritability, longing for his family, intense pressure, and difficulty adjusting to new surroundings. Post-service, he states he continued to experience flare-ups of his bipolar disorder from 2012 to 2018. • Post-service, the Veteran continued to receive mental health treatment for his bipolar disorder immediately after discharge from July 2012 to January 2013 at Serenity Behavioral Health (these private records are being secured on remand). In January 2013 and February 2013, the Veteran was admitted to Memorial Hospital for hallucinations and “chronic mental illness.” It was noted he has been unable to work since discharge from the military. • Post-service, private mental health, counseling, and inpatient hospital records dated from 2013 to 2015 reveal diagnoses of bipolar disorder, NOS; psychotic disorder, NOS; schizoaffective disorder; paranoid schizophrenia; adjustment disorder; and obsessive compulsive disorder (OCD). • Post-service, the August 2013 VA psychological examiner opined that although the Veteran’s bipolar disorder, NOS, preexisted his military service, it is “less likely as not” that his bipolar disorder was permanently aggravated by his military service. The rationale of the VA examiner was that a bipolar disorder is often a cyclical disorder, meaning that it is common for an individual with this disorder to experience periods or mania / hypomania, periods of depression and periods of “normal” functioning. The Veteran indicated that he was not taking medication for bipolar disorder when he began to experience symptoms in the military. This is not an uncommon occurrence for people with bipolar disorder according to the VA examiner. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.