Citation Nr: 21000649 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-20 254 DATE: January 5, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1967 to January 1971 and from March 1971 to June 1987, to include service in Vietnam. His decorations include the Combat Infantryman Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In August 2019, the Veteran and his wife testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that appeals with respect to other issues have been initiated, but are not presently ready for the Board’s review; either because they are awaiting hearing or have been appealed pursuant to the modernized review system under the Appeals Modernization Act. Those issues will be the subject of later Board decisions, if otherwise in order. The present case was previously before the Board in December 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. While the Board sincerely regrets the additional delay, another remand is necessary in order to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that he has PTSD from events he experienced in service. He also contended in a September 2017 application for benefits that he has a mental disorder secondary to his service-connected injuries. As noted in the Board’s December 2019 remand, the Veteran was afforded a VA examination in connection with his claim in March 2014. The examiner found that the Veteran reported experiencing stressful events in service that would likely qualify as traumatic events, but emphasized that the Veteran largely denied experiencing the symptoms of PTSD. She found that he did not have a diagnosis of PTSD or any other mental health diagnosis. The Board also noted in its remand that at the August 2019 hearing, the Veteran testified that he had received treatment for PTSD from a private care provider at Eckard’s Psychological Services during the period on appeal. He also testified that he received treatment for PTSD from VA care providers at the James J. Howard Clinic, and that he would begin receiving treatment soon at the Lakewood Vet Center. The Board noted that these records were not present in the claims file and directed the AOJ to undertake development to obtain them. It also directed the AOJ to afford the Veteran a new VA examination, but only if the additional records indicated that the Veteran had an acquired psychiatric disorder, including PTSD. Regarding the private treatment records, the Board directed the AOJ to send the Veteran a letter requesting that he provide a release for the records, and identify any other private care providers who might have records pertinent to the issue on appeal. In December 2019, the AOJ sent the Veteran the requisite letter. To date, he has not responded to that request. The Veteran is reminded that VA’s duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential to the outcome of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193, recon. denied, 1 Vet. App. 406 (1991) (per curiam). If he is to have a reasonable opportunity to prevail on his claim, he must respond with specificity to VA’s requests for additional information. Otherwise, his claim may be denied. Regarding VA treatment records, the AOJ obtained records from the James J. Howard Clinic and from the Lakewood Vet Center in January 2020. It did not, however, afford the Veteran another VA examination to assess the nature and etiology of any acquired psychiatric disorder, including PTSD. The Board notes that the records from the Lakewood Vet Center clearly show treatment for PTSD. They indicate, for example, that the Veteran was “assessed” with PTSD in August 2019. A treatment note of that date also outlined traumatic events which the Veteran experienced in service and indicated that his symptoms at that time included depression, guilt, trust, anger, and other intrusive symptoms. Importantly, the records do not discuss or even address the diagnostic criteria that are required to warrant a diagnosis of PTSD consistent with the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). However, they clearly indicate that the Veteran may have a current diagnosis of PTSD and demonstrate that he has been treated for symptoms of PTSD during the period on appeal. In light of the above, the Board finds that the AOJ did not substantially comply with the December 2019 remand directives when it failed to afford the Veteran a new VA examination after receiving records from the Lakewood Vet Center. A remand for a new VA examination is warranted. See Stegall, supra. Updated records of any VA treatment should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to schedule the Veteran for a VA mental disorders examination. The examiner should review the record. All indicated tests (to include psychological testing, if necessary) should be conducted and the results reported. After examining the Veteran and reviewing the record, to include the results of any testing necessary, the examiner should indicate whether the Veteran has met the DSM-5 diagnostic criteria for PTSD at any time since December 2013 (when his claim for service connection was received). In so doing, the examiner should consider the records from the Lakewood Vet Center indicating that the Veteran was assessed with PTSD in August 2019. If it is the examiner’s opinion that the diagnostic criteria for PTSD have been met, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to a verified stressor, to include the Veteran’s verified participation in combat. If psychiatric disorders other than PTSD are diagnosed (or are found to have been present at any time pertinent to the present appeal), the examiner should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder had its onset in, or is otherwise attributable to, service. If is the examiner’s opinion that it is unlikely that an identified psychiatric disability other than PTSD had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been caused or aggravated by the Veteran’s service-connected disabilities. A complete rationale for all medical opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.