Citation Nr: 21004339 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-03 257A DATE: January 26, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1981 to November 1984. The U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that, although a Veteran claims entitlement to service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that reasonably may be encompassed by several factors, including the Veteran’s description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).   Here, although the Veteran filed his claim specifically for PTSD, the Board sees that his VA CAPRI records show additional diagnoses of anxiety, adjustment disorder with mixed disturbance of emotions and conduct, and intermittent explosive disorder. The Board therefore finds that, pursuant to the holdings in Clemons, his claim should be recharacterized more generally as for an acquired psychiatric disorder – inclusive of but not limited to PTSD. In a September 2020 rating decision, the local regional office (RO) granted service connection for obstructive sleep apnea (OSA) and assigned an initial 50 percent rating for this disability retroactively effective from December 3, 2015. If the Veteran disagrees with that initial rating and/or effective date, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) 1. Entitlement to service connection for COPD is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, including but not limited to PTSD, is remanded. The Veteran submitted correspondence in February 2019 indicating he had been determined eligible for Social Security Administration (SSA) disability benefits and submitted a copy of his award letter. Although the letter does not specify whether SSA benefits were awarded for COPD and/or a psychiatric disorder, these SSA records may be relevant to his VA claims. Where the record contains factual notice to VA that a Veteran has received SSA benefits, VA has the duty to acquire a copy of the SSA records. SSA records are relevant if either (1) there is an SSA decision pertaining to a medical condition related to the one for which the Veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the SSA records may pertain to the claimed disability. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Baker v. West, 11 Vet. App. 163 (1998). As the Veteran submitted his SSA benefits award letter as evidence in support of his appeal for these disabilities now being claimed, it stands to reason his SSA records are relevant to these disabilities, so the Board is obligated to try and obtain these additional records. Regarding the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD, the Board previously remanded this claim in January 2020 directing the RO to do additional development to try and corroborate the Veteran’s alleged stressors and to schedule him for a VA mental status examination for an opinion concerning the nature and etiology of his claimed condition. Significantly, however, the RO did not schedule the requested VA examination to assist in determining the etiology of his claimed acquired psychiatric disorder, inclusive of PTSD. And, even on the chance an examination was not scheduled since his stressors could not be confirmed, that would only be germane to his claim for PTSD, specifically, so would not be reason not to schedule the examination in response to the other mental disorders that, as mentioned, also have been diagnosed. In addition, as noted in the prior January 2020 Board remand, the Veteran reports experiencing the following stressors during his service: 1) witnessing a fellow solider commit suicide by hanging while stationed in Fort Polk, Louisiana, 2) witnessing another soldier being struck and killed by an armored personnel carrier (APC) that crashed into the mess hall, and 3) witnessing a Goer flip over and pin someone, cutting him in half, while stationed in Germany. Pursuant to the January 2020 Board remand, the RO completed its development of the latter two incidents and determined that there was a lack of information to verify the claimed stressors. See September 2020 Memorandum. However, regarding the first stressor, in June 2018 the Defense Personnel Records Information Retrieval System (DPRIS) confirmed the suicide death of a person by the name the Veteran provided at Fort Polk, Louisiana, during the date range he provided, but was unable to document his unit of assignment at the time of that death. It was noted that, if an investigation was conducted concerning this incident, there might be a criminal investigation report that was filed. It therefore was recommended that the U.S. Army Crime Records Center be contacted. Thereafter, to this end, the RO made three attempts to corroborate the incident described by the Veteran with the U.S. Army Crime Records Center but made no further inquiry after receiving no response. VA regulations addressing the duty to obtain records in the custody of the Federal government, however, require that VA make as many attempts as necessary to obtain relevant records until VA concludes that the records do not exist or that any further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). Instances in which further attempts would be considered futile include receiving a response that the Federal agency contacted does not have the records. As VA has not received a response from the U.S. Army Crime Records Center, it is unclear if this agency does not have the records or if there is some other reason for there being no response to VA’s inquiries. Therefore, the Board cannot yet conclude there is no reasonable possibility that records exist which would confirm the Veteran’s claimed in-service stressor or that it would be futile to make further attempts to verify that claimed stressor. Thus, the RO must make a formal determination that further efforts to obtain these records would be futile or continue requesting them. In this regard, the RO should obtain the Veteran’s unit records and review them for any indication tending to confirm his report of this incident. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268 (1998). As the prior remand order was not complied with, even to what could be considered acceptable substantial compliance, and in accordance with Stegall, these claims are REMANDED for the following still additional development and consideration: 1. Obtain the Veteran’s unit records and review them for any indication tending to confirm his report of the suicide death of a person by the name the Veteran provided in Fort Polk, Louisiana, during the date range he provided, which was confirmed by DPRIS in June 2018. 2. Continue requesting records from the U.S. Army Crime Records Center regarding the aforementioned incident or make a formal determination that further efforts to obtain these records would be futile. 3. Obtain and associate with the file all SSA records (medical and administrative) concerning this Veteran. All actions to obtain these requested records must be documented fully in the claims file. If any records cannot be located or no such records exist, the Veteran and his representative must be so notified, and the unavailability of the records must be noted in the claims file. 4. After completing the above requested development, afford the Veteran a VA examination to determine the precise nature of his acquired psychiatric, to include PTSD and the other diagnoses he has received of anxiety, adjustment disorder with mixed disturbance of emotions and conduct, and intermittent explosive disorder. His claims file must be made available to the examiner in conjunction with the examination. All tests deemed necessary, including mental status testing, should be performed and all findings reported in detail. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be used. The examiner should confirm whether the Veteran currently has a diagnosed psychiatric disorder pursuant to DSM-5. The examiner should then provide an opinion as to the following: (a.) If PTSD is diagnosed, then is it at least as likely as not (a 50 percent or greater probability) that any of the claimed in-service stressors caused the Veteran’s PTSD? (b.) For any psychiatric diagnosis other than PTSD, is it at least as likely as not (a 50 percent or greater probability) the Veteran’s disability began during his service or, if a psychosis, within a year of his discharge, or is otherwise related or attributable to a disease, event, or injury in service? A complete rationale for all opinions provided is essential. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for a psychiatric disorder in the Veteran’s service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion – although it is permissible to consider this as one of several factors, provide there also is explanation of why it is reasonable to have this expectation. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner should provide a reason for doing so.   If the examiner is unable to provide an opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.