Citation Nr: 21061572 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-35 534 DATE: October 4, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1985 to December 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Winston-Salem, North Carolina. The Veteran testified at a virtual video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in July 2021. A transcript of the hearing has been associated with the claims file. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) only. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. Service Connection Acquired Psychiatric Disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD, agoraphobia, anxiety, and depression. Specifically, the Veteran asserts that his acquired psychiatric disorder was caused by in-service stressors such as witnessing a crush injury of a fellow servicemember during a fire, watching a man going overboard and being lost at sea, and preventing a suicide of his friend during active service. Additionally, the Veteran asserts that his symptoms began during active service and have continued since. Of record are several private evaluations submitted by the Veteran. In a July 2016 private evaluation submitted by Dr. S., the Veteran was diagnosed with PTSD, major depressive disorder, and agoraphobia with panic disorder. An opinion as to the nature and etiology of his diagnosed psychiatric disorders was not provided at that time. In an August 2016 evaluation by Dr. B., the Veteran was diagnosed with depression, anxiety, and agoraphobia. An opinion as to the nature and etiology of his diagnosed psychiatric disorders was not provided at that time. In an August 2021 private evaluation submitted by Dr. S., the Veteran was diagnosed with PTSD. At that time, Dr. S. opined that it was his professional opinion that the Veteran "suffer[ed] from his service-related Post-traumatic Stress Disorder that has continued to persist and impair his social-occupational functioning in all areas..." The Board finds the July 2016, August 2016, and August 2021 private evaluations inadequate to decide the claim. Specifically, the July 2016 and August 2016 evaluations provided psychiatric diagnoses but did not provide opinions as to the nature and etiology of his diagnoses. Next, the August 2021 private opinion is incomplete because it did not provide supporting rationale for the conclusions reached, nor did the opinion address the Veteran's own contentions during active service that his psychiatric symptoms pre-existed active service. In this regard, the Board notes that the Veteran reported he had seen a counselor since childhood due to feelings of hostilities and struggles with reading. See Service Treatment Record, January 9, 1986. Moreover, the August 2021 private opinion did not opine as to whether the Veteran's acquired psychiatric disorder is as a result of his military service. The Board notes that the record establishes that the Veteran has been diagnosed with acquired psychiatric disorder. To date, VA etiology opinions have not been obtained. In light of the foregoing, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Finally, a February 2017 letter indicates that the Veteran was awarded Social Security Administration (SSA) benefits beginning in August 2016. During the Board hearing, the Veteran testified that he was awarded SSA benefits based on his psychiatric disability. 38 C.F.R. §§ 3.159(c)(2) and (3); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is obliged to attempt to obtain and consider records from SSA). Therefore, to ensure that VA has met its duty to assist, remand is necessary to obtain those records associated with his SSA award. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all Social Security Administration (SSA) records, including a copy of the award letter. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (a) Identify the Veteran's currently diagnosed acquired psychiatric disorder(s) or has had such a diagnosis at time during the pendency of his claim. If the examiner determines that a diagnosis previously of record is not warranted, he or she should reconcile that with the record. (b) Thereafter, for every diagnosed acquired psychiatric disorder found on examination, is it clear and unmistakable (obvious, manifest, and undebatable) that the acquired psychiatric disorder preexisted active service? The examiner is asked to address the January 1986 service treatment record indicating that the Veteran received counseling since childhood due to difficulties with reading and feelings of hostility. (c) Thereafter, for every diagnosed acquired psychiatric disorder found on examination, is it clear and unmistakable (obvious, manifest, and undebatable) that the preexisting acquired psychiatric disorder WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? The examiner should be sure to address the Veteran's criminal history prior to service. (d) Thereafter, for every diagnosed acquired psychiatric disorder found on examination, if the acquired psychiatric disorder DID NOT preexist service, is it at least as likely as not (a probability of 50 percent or greater) had its onset in service or is etiologically related to service? The examiner should be sure to address the Veteran's reports of in-service stressors that include seeing a severe crush injury and/or man overboard of fellow servicemembers. (e) For any personality disorder, the examiner should also opine as to whether it is at least as likely as not that the Veteran has an additional disability due to a disease or injury superimposed upon a personality disorder as a result of service. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.