Citation Nr: 21001934 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 07-38 017A DATE: January 12, 2021 REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, mood disorder associated due to general medical conditions, and alcohol abuse disorder, and to include as secondary to service-connected tinea cruris, service-connected pseudofolliculitis barbae, and service-connected tina unguium, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to April 1972, and from June 1972 to March 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in September 2011, January 2013, February 2017, and December 2017, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the December 2017 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO was instructed to obtain and associate with the claims file any outstanding VA treatment records, and to provide the Veteran with a new VA examination conducted by an examiner other than the March 2017 examiner. VA treatment records were successfully added to the claims folder in January and May 2018, and March 2019. The Veteran underwent a new VA examination in June 2018 conducted by a different VA examiner. Although there was substantial compliance with the December 2017 Board remand directives, for the reasons stated below, remand is again required. Entitlement to service connection for a psychiatric disorder is remanded. First, remand is required for a new VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran underwent a VA examination in June 2018 where the examiner provided a negative nexus opinion. First, the examiner opined that the Veteran does not have a diagnosis of PTSD, explaining that the DSM-V criteria is very clear that he had to have learned of a close family member or close friend’s death. The Veteran has long asserted that he has PTSD and that it is connected to the learning of the deaths of four fellow servicemembers in a motor vehicle accident during service; however, the examiner explained that the Veteran had only known the soldiers for a couple of weeks, and that he did not directly experience the event. The examiner also stated that the Veteran’s symptoms do not include intrusion or persistent avoidance. The examiner also opined that the psychiatric disorder is less likely than not the result of active duty service as there is not a current diagnosis, to include PTSD, generalized anxiety disorder (GAD), and mood disorder, at this time. First, the examiner explained that the Veteran does not meet the criterion for GAD or a mood disorder because the DSM-V is very clear that he had to have learned of the death of a close family member or a close friend, and he had only known these soldiers for a couple of weeks. The Board finds this rationale to be lacking as it appears to be simply restating the examiner’s reasons for not finding a diagnosis of PTSD, and does not actually address the diagnoses of GAD or a mood disorder. The examiner then explained that although most VA treatment records note anxiety, they also note that the Veteran’s condition is stable and showing some efficacy in managing his thoughts, feelings, and behavior related to the disorder. The examiner also noted that although diagnoses of GAD are listed throughout the record, they are found by history. The Board finds this rationale to be lacking as it appears to be contradictory. The examiner is acknowledging a condition, and yet because the symptoms of the condition appear to be stable, they are asserting that there is no condition. The Board notes that the Veteran has received regular psychiatric treatment from VA for approximately twenty years. Numerous VA psychiatric records list GAD among the Veteran’s diagnoses. Although they are indeed often listed as by history as opposed to by evaluation during that session, these same records also often discuss treating the anxiety with prescription medication. For example, a December 2018 entry indicates that a prescription for buspirone was continued at the last visit, and that the Veteran found that the medication was effective for his anxiety. A January 2019 active outpatient medication list includes buspirone, with instructions to take two tablets three times a day for anxiety. The examiner failed to address what the effect of two decades of regular therapy and the ameliorative effects of medication might have on the condition. The examiner also explained that GAD is characterized by excessive anxiety and worry, and that the Veteran is worried about his finances, and not prior memories of service. The examiner stated that the Veteran easily disclosed the deaths of his fellow servicemembers, and did not appear to be upset or anxious. The Veteran also reported that he was written up for excessive drinking in boot camp, prior to his assignment in Greece and the death of the other soldiers. The examiner explained that accordingly, self-medicating with alcohol does not appear to be related to military stressors. The examiner then stated that the Veteran does not meet the criteria for a diagnosis of GAD; however, it is unclear how the credibility of the Veteran’s reported in-service stressor relates to a current diagnosis of anxiety. Further, even if the examiner finds that the Veteran indeed no longer has anxiety, this opinion still does not adequately assess element one of service connection. The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed this claim for service connection in June 2005. During this lengthy appeal period, VA treatment records indicate various diagnoses, to include anxiety. January 2006 VA treatment records note diagnoses of anxiety and PTSD. January 2008 VA treatment records provide diagnoses of PTSD, anxiety, and a mood disorder associated due to general medical conditions. A January 2011 VA examination provided diagnoses of anxiety disorder not otherwise specified, and alcohol abuse. A May 2015 VA examination continued these diagnoses. And a March 2017 VA examination found diagnoses of unspecified anxiety disorder, and alcohol use disorder which had been reported in remission for almost 5 years. The Board notes this is not an exhaustive list, as noted above the Veteran has received regular VA psychiatric treatment for approximately twenty years, and diagnoses are listed in the entry for each session. The examiner failed to explain whether, even if subsequently resolved, any of these prior diagnoses might be sufficient to fulfill element one of service connection. Further, although the examiner noted that the Veteran does not currently have a mood disorder, they did not provide any supporting rationale. And the examiner failed to mention the alcohol abuse disorder at all. Finally, the examiner addressed service connection on a secondary basis. The examiner stated that a psychiatric disorder is less likely than not caused or aggravated by the Veteran’s service-connected disabilities because there is no diagnosis of PTSD, GAD, or mood disorder. The examiner failed to provide any other supporting rationale. Accordingly, remand is required for a new VA examination. Second, remand is required to obtain military personnel records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records and VA treatment records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). On an August 2001 PTSD Questionnaire, in addition to the motor vehicle accident, the Veteran asserted that another in-service stressor was the stress he experienced guarding missiles. His DD-214s list his military occupational specialties (MOS) as Armorer and Proof Technician helper. In an August 2017 statement, the Veteran asserted that he was booted from the Marines for his psychiatric disorder. On his U.S. Marine Corps DD-214, the reason for discharge is listed as 21L – Convenience of the Government, paragraph 6012.1f (7) Marine Corps Separation and Retirement Manual. While military personnel records are found in the Veteran’s claims file, they appear to only cover up through his period in the National Guard following separation from the Army. Other than his DD-214, personnel records covering his service in the Marine Corps are not associated with the claims file. This alternate theory of entitlement was not addressed in the June 2018 VA examination, nor has it ever been properly addressed by VA. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Accordingly, remand is required to obtain missing personnel records. Finally, remand is required to obtain missing VA treatment records. Both the May 2015 and March 2017 VA medical opinions cite a June 2000 VA examination that supports their belief that the Veteran is malingering. This examination is referenced as being found in Vista. The Board does not have access to Vista. Accordingly, remand is required to obtain this missing VA treatment record and associate it with the claims file. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, to include a June 2000 psychiatric evaluation in Vista imaging. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Obtain the Veteran’s military personnel records, to include those covering his service in the Marine Corps, and verify whether his duties involved guarding missiles, and all records concerning the circumstances and reasons for his separation from service listed on his DD-214, listed as 21L – Convenience of the Government, paragraph 6012.1f (7) Marine Corps Separation and Retirement Manual. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) First, the examiner must determine all of the Veteran’s diagnosed psychiatric disorders. The examiner must specifically determine if PTSD, anxiety, mood disorder due to general medical conditions, and alcohol abuse disorder. If not found, the examiner must address the prior diagnoses of PTSD, anxiety, mood disorder due to general medical conditions, and alcohol abuse disorder. The examiner is reminded that the requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. (b) For each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active military service. (c) For each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder is caused by the service-connected tinea cruris, service-connected pseudofolliculitis barbae, and service-connected tina unguium. (d) For each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder is aggravated by the service-connected tinea cruris, service-connected pseudofolliculitis barbae, and service-connected tina unguium. (e) The examiner must address: 1) the August 2001 PTSD Questionnaire where the Veteran asserted two stressors, to include hearing of the motor vehicle accident killing his fellow servicemembers and the stress from guarding missiles; 2) September and October 1971 STRs regarding in-service psychiatric treatment; and 3) the continued prescriptions for anxiety medication. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.