Citation Nr: 21063962 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-02 724 DATE: October 18, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include, posttraumatic stress disorder (PTSD), an intermittent explosive disorder, a mixed adjustment disorder, and anxiety, is remanded. REASONS FOR REMAND The Veteran had active service from November 1998 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2017 substantive appeal (VA Form 9), the Veteran requested a hearing. He was scheduled for a hearing in July 2021 but failed to appear for the proceedings. He has not requested that his hearing be rescheduled and has not provided an explanation for his non-attendance for his scheduled hearing. As such, his hearing request is considered withdrawn. In July 2017, the Veteran's attorney submitted a motion to withdraw his representation of the Veteran and, in so doing, stated that the Veteran dismissed his representation after all evidence were submitted by the attorney. [VA has not yet received any notification from the Veteran, indicating his wish to replace his prior attorney with new representation. See August 2021 Board Letter.] The Veteran's appeal was previously certified to the Board in February 2017. Once a case has been certified to the Board, a representative may not withdraw unless good cause is shown on motion. 38 C.F.R. § 20.608. Here, the Board finds that the attorney's motion to withdraw provides sufficient good cause to accept his withdrawal as the Veteran's representative under the regulations governing withdrawal of a representative. Id. The Veteran is considered unrepresented before VA. Since filing his claim, the Veteran has been diagnosed with several psychiatric disorders, to include PTSD, an intermittent explosive disorder, an mixed adjustment disorder, and anxiety. See March 2012 Initial PTSD DBQ and November 2011 Emergency Department Note, CAPRI. Accordingly, the Veteran's claim has been recharacterized as one for an acquired psychiatric disorder, to include the variously diagnosed PTSD, intermittent explosive disorder, mixed adjustment disorder, and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (a claim for benefits for a particular mental disability "cannot be a claim limited to that diagnosis but must rather be considered a claim for any mental disability that my reasonably be encompassed" by the evidence). The Veteran's former representative asserted that the Veteran's claim for sleep disturbance, depression, and stress have never been adjudicated. Indeed, while the claim for depression is encompassed in the Veteran's claim for an acquired psychiatric disorder, the record reflects that claims for sleep disturbance and stress have not been adjudicated by the RO. As such, the Board does not have jurisdiction over these particular claims. Service connection for a variously-diagnosed acquired psychiatric disorder Effective August 4, 2014, VA amended the portion of the Schedule for Rating Disabilities regarding mental disorders to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. § 4.125(a). The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. During the current appeal, and specifically on February 3, 2017, the RO issued a VA Form 8, certifying the Veteran's current appeal. As the Veteran's claim was pending after August 4, 2014, the amendment applies to the instant case. In March 2012, the Veteran underwent VA examination to determine the nature and etiology of his PTSD. See March 2012 Initial PTSD Disability Benefits Questionnaire (DBQ). In his report, the examiner indicated that he relied on the PTSD diagnostic criteria in DSM-IV. Additionally, the record contains a June 2012 report indicating that the Veteran received standardized psychiatric testing in May 2012 as part of screening procedures for a research protocol. The administered tests included a structural interview for DSM-IV Axis I Disorders of which, the Veteran met the criteria for PTSD. As no VA examination or medical opinion relied on the DSM-V diagnostic criteria, remand is necessary to afford the Veteran a new VA examination in accordance with the amendment. 38 C.F.R. § 4.125(a). Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disorder he may have, to include PTSD, intermittent explosive disorder, mixed adjustment disorder, and anxiety. Following review of the claims folder, as well as an interview with and examination of the Veteran, the examiner should: (a.) Identify/diagnose/confirm any acquired psychiatric disorder that presently exists or that has existed during the appeal period to include PTSD, intermittent explosive disorder, mixed adjustment disorder, and anxiety. (b.) Opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosed acquired psychiatric disorder onset in the Veteran's service or is otherwise etiologically related to such service. The examiner is asked to discuss whether any such diagnosed acquired psychiatric disorder is consistent with the Veteran's reported experiences in service. Specifically, the examiner must discuss (1) the Veteran's December 1999 service treatment records from the Division of Psychiatry reflecting his thoughts of suicide, (2) the November 2011 emergency department note in which the Veteran described PTSD symptoms related to his time in the Marine Corp, and (3) the June 2012 research protocol report indicating that the Veteran met the criteria for PTSD starting in 2001, which is connected to the drowning death of his friend and fellow Marine. Also, in answering these questions, the examiner should consider the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM 5). 38 C.F.R. § 4.125(a). No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.