Citation Nr: 21003987 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 19-31 998 DATE: January 25, 2021 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1963 to March 1964. Though this matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 Rapid Appeals Modernization Program (RAMP) rating decision issued by a Department of Veterans Affairs (VA) regional office, it was initially addressed by an August 2017 rating decision. In December 2019, the Board denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 decision, the Court granted a Joint Motion for Remand (JMR) and remanded the case to the Board for further proceedings. As an initial matter, the Board notes that VA is required to consider all theories of entitlement to VA benefits, including via secondary service connection, that are either raised by the claimant or reasonably raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran has asserted that his acquired psychiatric disorder is secondary to his service-connected tinnitus. See July 2019 Notice of Disagreement (NOD). Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus. Additionally, the Board acknowledges that this appeal arises from a RAMP rating decision. However, the subsequent appellate history is indicative of the legacy system. Specifically, the Veteran filed a Notice of Disagreement in July 2019, a Statement of the Case was issued in September 2019, and a Form 9 in October 2019. Additionally, the December 2019 Board decision was processed in the legacy system. As such, this matter will be processed in the legacy system. The claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, and in light of the JMR, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the claims file. Specifically, the record indicates that the Veteran has received treatment for his claimed psychiatric disorder from a private physician. See June 2017 VA Mental Disorders Disability Benefits Questionnaire (DBQ). However, there is no indication that any attempts have been made to obtain these records. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, as discussed in the JMR, a remand is necessary to allow the AOJ to obtain an adequate medical opinion regarding the nature and etiology of the Veteran’s claimed psychiatric disorder. Significantly, in June 2017, the Veteran was afforded a VA psychiatric examination in which the examiner noted a current diagnosis of unspecified depressive disorder. The examiner appears to provide a negative etiological opinion on the basis of “[s]ee STRs page 20-21” without additional explanation but later indicated that she could not render the requested opinion regarding a “passive aggressive personality.” See June 2017 VA Mental Disorders DBQ. Therefore, the medical opinion, or lack thereof, is inadequate with respect to the etiology of the Veteran’s claimed psychiatric disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Additionally, the June 2017 VA examiner noted that an in-service mental status examination conducted on January 22, 1964, did not show any impairment of intellect, judgment, memory, thinking, or mood, only noting that the Veteran was described as immature. See June 2017 VA Mental Disorders DBQ. However, the Veteran’s service treatment records (STRs) indicate that the January 1964 examination provided a diagnosis of passive dependent personality and concluded that the disorder was of such severity as to render the Veteran unsuitable for further military service. See STR-Medical. As such, the June 2017 VA medical opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Further, the examiner stated that passive aggressive personality/passive dependent personality assessments are mostly used to describe that a person has some traits of the personality disorder and do not necessarily indicate that such person has a formal full psychiatric disorder. See June 2017 VA Mental Disorders DBQ. However, the examiner did not cite any literature in support of the statement or elaborate as to whether such assertion applied to the Veteran’s in-service diagnosis of passive dependent personality. See Nieves-Rodriguez v. Peake, supra. Moreover, as noted above, potentially pertinent private medical records have not been associated with the claims file. As such, the June 2017 opinion is inadequate as the examiner was unable to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the June 2017 VA medical opinion to be inadequate for adjudication purposes. Notably, the JMR has instructed the Board to afford the Veteran a new VA psychiatric examination in which the examiner addresses the Veteran’s medical history and opines as to whether the Veteran’s current psychiatric disability is related to his in-service diagnosis. As such, remand is necessary to obtain afford the Veteran a new VA examination and adequate medical opinion regarding the nature and etiology of the Veteran’s claimed psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, to include private treatment referenced during the June 2017 VA psychiatric examination as well as records relating to treatment at San Juan VA Medical Center (VAMC) from November 2019 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records should be documented in the electronic claims file, and the Veteran should be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for a new VA psychiatric examination to obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s claimed acquired psychiatric disorder. The entire claims file must be provided to, and reviewed by, the examiner. The examiner is asked to: (a.) Obtain the Veteran’s lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed psychiatric condition, provide the following opinions: i. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran’s active duty service. ii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition is caused by a service-connected condition, to include tinnitus. iii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition, to include tinnitus. (c.) In formulating the requested opinions, the examiner is instructed to consider and address: i. The Veteran’s lay statements regarding onset and progression of symptomatology. ii. The Veteran’s in-service diagnosis of passive dependent personality. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. The AOJ should review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (Continued on the next page)   If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. April Maddox Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.