Citation Nr: 21003728 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 19-03 359A DATE: January 22, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and other specified trauma and stressor related disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1965 to April 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs Regional Office (RO). In April 2020, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ). A copy of the transcript of that hearing has been associated with the claims file. As the VLJ who conducted the hearing is no longer with the Board, the Veteran was asked if he would like another hearing. In January 2021, he responded that he did not wish to appear at another hearing. The Board notes that the Veteran’s claim for service connection for an acquired psychiatric disorder was originally denied in a March 2015 rating decision. The Agency of Original Jurisdiction (AOJ) denied the claim on the basis that the Veteran did not have a diagnosed psychiatric disorder. The Veteran filed to reopen his claim in October 2016. In a January 2017 rating decision, the AOJ stated that new evidence had been received and considered the claim reopened, but continued the denial thereof. In this regard, the January 2017 rating decision noted that VA medical records from August 2015 through January 2017 were reviewed. A review of VA Medical records dating from that time period show that a September 2015 VA mental health assessment by a psychiatrist noted a DSM-V primary diagnosis for other specified trauma and stressor related disorder (sub-threshold PTSD). However, this record was not associated with the claims file until February 2019. Instead, a review of VA medical records associated with the claims file prior to the January 2017 rating decision includes an August 2016 VA medical record noting a DSM-V primary diagnosis for PTSD. See VA Medical Records Received October 2016. In Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020), the Federal Circuit held that VA medical records created within the appeal period following a decision of the AOJ are constructively received for the purposes of 38 C.F.R. § 3.156(b), regardless of whether the VA adjudicator had knowledge of their existence. Thus, as new and material VA medical records note a current psychiatric diagnosis as of September 2015, and as this VA record was created within one year of the March 2015 rating decision, that decision did not become final. Accordingly, new and material evidence is not required as the claim remains on appeal from the initial March 2014 claim. See 38 C.F.R. § 3.156(b). Acquired Psychiatric Disorder As noted above, during the period on appeal, the Veteran has been in receipt of various psychiatric disorder diagnosis including other specified trauma and stressor related disorder (sub-threshold PTSD) (September 2015), and PTSD (August 2016). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has undergone two VA examinations, in March 2015 and November 2016, both of which noted the absence of a current diagnosis for a psychiatric disorder. A review of the March 2015 VA examination shows the examiner stated that the Veteran had never engaged in mental health service since his separation from service, and that he had never taken any psychotropic medications for any mental health problems. A review of the November 2016 VA examination does not reveal that the examiner considered the psychiatric diagnoses contained in the Veteran’s VA treatment records, including the August 2016 VA medical record noting a DSM-V primary diagnosis for PTSD, which was provided by a psychologist shortly prior to that examination. Therefore, it does not appear that either the March 2015 or the November 2016 VA examiner reviewed or had access to the Veteran’s VA treatment records. Additionally, a review of the Veteran’s VA medical records indicates that he received VA mental health treatment. Therefore, the March 2015 VA examination is based, in part, on an inaccurate factual predicate. Accordingly, the Board finds those examinations inadequate to adjudicate the issue on appeal and that another VA examination should be obtained. In addition, the Board notes that during his April 2020 Board hearing, the Veteran testified that he received PTSD treatment at his VA medical center, with the last appointment occurring in January 2020, but with treatment noted as temporary suspended due to the current pandemic. However, the most recent VA medical record contained in the claims file is dated November 2018. Accordingly, in order to properly adjudicate the issue on appeal, updated VA medical records should be obtained and associated with the claims file. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, including all records dating since November 2018, and all private treatment records from the Veteran not already associated with the file. 2. After updated VA medical records and any identified private treatment records have been obtained, schedule the Veteran for a VA examination with a psychiatrist or a psychologist (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must determine whether the Veteran currently suffers from an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder (sub-threshold PTSD). The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. Specifically, state whether each criterion for a diagnosis of PTSD is met. Otherwise, provide a diagnosis for any acquired psychiatric disorder. (b) If a diagnosis of PTSD is appropriate, identify each stressor event upon which the diagnosis is based. (c) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether the diagnosed psychological disorder is it at least as likely as not (50 percent or greater probability) etiologically related to a period of active service. Please explain why or why not. The examiner is asked to consider the Veteran’s VA treatment records, including records noting DSM-V diagnoses for other specified trauma and stressor related disorder (sub-threshold PTSD) (September 2015) and PTSD (August 2016), and any other diagnosed psychiatric disorder. The examiner is also asked to consider the Veteran’s reported symptoms of a sleep disorder which has been treated with medication (See January 2018 VA medical record noting symptoms of nightmares and treatment with Prazosin). All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.