Citation Nr: 21064317 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-24 773 DATE: October 19, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include Post-traumatic Stress Disorder (PTSD). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. REASONS FOR REMAND The Veteran had active-duty service in the U.S. Army from February 1969 to October 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2020. In that October 2020 decision, the Board granted that Veteran's petition to reopen his claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Board subsequently denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD in its October 2020 decision. In July 2021, the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) that part of the Board's October 2020 decision which denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In a July 2021 Joint Motion for Partial Remand (JMPR), the parties (the Veteran and the Secretary of Veterans Affairs) agreed that the Board errored when it failed to ensure satisfaction of the duty to assist prior to adjudication of the Veteran's claim under 38 U.S.C. § 5103A. The JMPR was granted by an Order of the United States Court of Appeals for Veterans Claims (Court) dated in June 2020. See CAVC Order, July 28, 2021. As such, the Board's October 2020 denial of entitlement to service connection for an acquired psychiatric disorder, to include PTSD was vacated and remanded for further proceedings consistent with the JMPR. The matter has now returned to the Board for further action consistent with the terms of the July 2021 JMPR. See July 6, 2021 JMPR. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. During the course of this appeal, the Veteran has been provided VA examinations in June 2019, April 2017 and December 2017. Each VA examiner rendered negative nexus opinion to service. In the July 2021 JMPR, the parties agreed that each examination was inadequate because they examiner's opinions were not supported by adequate rationale. With respect to the June 2019 Mental Disorder's examination, the parties noted that the June 2019 examiner reported that the Veteran has been receiving pharmacotherapy (Duloxetine) for some time for depressed mood symptoms and is requesting assessment and treatment for present anxiety symptoms. This examination report specifically noted as reference, the use of Duloxetine. The June 2019 examination report indicated that "Duloxetine is a selective serotonin and norepinephrine re uptake inhibitor antidepressant (SSNRI). Duloxetine affects chemicals in the brain that may be unbalanced in people with depression. Duloxetine is used to treat major depressive disorder in adults. It is also used to treat general anxiety disorder in adults and children who are at least 7 years old. Duloxetine is also used in adults to treat fibromyalgia (a chronic pain disorder), or chronic muscle or joint pain (such as low back pain and osteoarthritis pain). Duloxetine is also used to treat pain caused by nerve damage in adults with diabetes (diabetic neuropathy)." The examiner determined that the Veteran's anxiety disorder is most likely due to medical conditions and chronic pain. See June 11, 2019 Mental Disorders' Examination and Medical Opinion, pgs. 1, 8 &13. The parties noted that other than the reference to the common usages of Duloxetine, the examiner does not provide any explanation for why he determined that the Veteran's anxiety was the result of chronic pain. Additionally, the parties agreed that the examiner's finding are inconsistent with a March 2017 VA treatment record which notes that the Veteran has been receiving pharmacotherapy (Duloxetine) for some time for depressed mood symptoms. See March 21, 2017 VA psychology note (San Juan VAMC). Further, the parties note that to extent the Board relied on the June 2019 Mental Disorder's examination in its October 2020 decision for the Veteran's PTSD claim, the June 2019 examination was not a PTSD examination. See June 11, 2019 Mental Disorders (other than PTSD and Eating Disorders) Examination. Lastly, the parties agreed that the June 2019 examiner failed to address a lay statement from the Veteran's spouse indicating that the Veteran continued to suffer from symptoms since he came back from the war in Vietnam, e.g., being scared of everything that explodes, people yelling, loud music and hard sounds. The parties agree that a new examination is required to address this relevant evidence. See, November 27, 2017 re: spouse's lay statement (Receipt Date December 2, 2017); See also November 1, 2017 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD and lay correspondence dated November 1, 2017. With respect to the April 2017 VA examination, the parties noted that the April 2017 examiner concluded that the Veteran did not have a mental disorder as per DSM-5 criteria. The April 2017 examiner noted however that that the Veteran's reported stressor met Criterion A due to documented sleeping difficulties, nightmares, sensitivity to loud sounds, that has increased to the point that "if you yell his name he jumps and forgetfulness as symptoms attributable to PTSD." See April 28, 2017 Initial PTSD examination, pg. 4. Here, the parties agreed that the April 2017 examiner failed to provide a medical rationale that explains why the symptoms discussed above did not meet PTSD criteria or support a PTSD diagnosis. With respect to the December 2017 VA examination, the parties agreed that the December 2017 examination failed to account for relevant evidence of symptomatology and to provide a reasoned medical rationale for its opinion. To this point, the parties noted that the record contains VA treatment records reporting the Veteran experiencing insomnia, nightmare episodes with Vietnam-related content, sadness, irritability and started response. See October 10, 2013 VA treatment records re: flies of the handle with family members during discussions or disagreement; See also, August 29, 2011, VA treatment record re: The Veteran reporting insomnia, feeling sad and crying, lack of interest depression symptoms. Notwithstanding, the parties noted that the VA examiner concluded that there was no mental condition found. See December 11, 2017 Initial PTSD Examination, pgs. 7-8. The parties agreed however that the evidence discussed above was not addressed by the December 2017 VA examiner nor was there a rationale connecting the examiner's opinion to the Veteran's medical history and supporting data. Records The parties also agreed that the VA failed to satisfy its duty to assist to obtain sufficiently identified VA medical records. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The parties note that the record consists of VA treatment records from the San Juan VA (VAMC) from August 24, 2009 to March 21, 2017. The parties also note that the record reflects that the Veteran informed the June 2019 examiner that he had been seeing a psychologist at the Veteran's Center in San Patricio for the last three months; however, that record does not contain VA treatment records from the San Patricio VAMC/Vet Center. As such, the parties agree that this notation in the record sufficiently identities VA medical records that have not been associated with the Veteran's claims file. 38 C.F.R. § 3159(c)(2). See also, June 11, 2019 Mental Disorders' examination, pg. 9. Additionally, the June 2019 examiner indicated that the Veteran's treatment records contain three notes by surgical staff from 2017 to 2016 documenting anxiety, fear, and concern related to surgery, surgical outcome and hospitalization. Id. at pg. 6. However, there are no VA treatment records from 2016 and 2017 with such notations in the claims file. The June 2019 examiner further references San Juan VAMC Outpatient treatment records in VBMS, (Outpatient records in VBMS): Note's diagnosis of depression and insomnia, dated May 2, 2018, and CAPRI note that the Veteran had a pending appointment at San Juan VAMC on May 11, 2018. See June 11, 2019 Mental Disorder's examination, pgs. 1-3; See also, CAPRI records, receipt date, February 7, 2018. Here, the parties point out that since the most recent VA treatment record is from March 21, 2017, there is sufficient information to indicate that there may be outstanding San Juan VAMC treatment records subsequent to March 21, 2017 that have not yet been associated with the Veteran's claims file. The parties also note that the Veteran reported on his VA Form 21-526 EZ, which was received by VA in April 2017 that he had been treated at the VAMC from 2000 to the present. See April 27, 2017 VA Form 21-526EZ (Receipt Date, May 2, 2017). In light of all of the above, and in order to comply with the terms of the July 2021 JMPR, the Board finds that remand is necessary for a new VA PTSD examination to determine the nature and etiology of this Veteran's acquired psychiatric disability, to include PTSD and to obtain sufficiently identified VA medical records that have not yet been associated with the Veteran's claims file. Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment notes and records not currently of record and associate them with the claims file since January 2000, to include VA treatment records from the San Patricio VAMC/Veteran's Center in 2019 and San Juan VAMC Outpatient treatment records from March 2017. Make at least two attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Next, Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. Following review of the claims file, including a copy of this remand and the July 6, 2021 JMPR, interview and examination of the Veteran, with any necessary testing, the examiner should address the following: (a) Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. If a diagnosis of PTSD and/or an acquired psychiatric disorder is not made the criteria missing from the diagnosis should be clearly identified and explained. The examiner should also reconcile such a finding against the diagnoses of record. Note: For purposes of this question, the examiner's attention is directed to October 10, 2013 VA treatment records regarding the Veteran's behavior, i.e., flies off the handle with family members during discussions or disagreement; See also, August 29, 2011, VA treatment record re: The Veteran reporting insomnia, feeling sad and crying, lack of interest, depression symptoms; See also lay statement from the Veteran's spouse indicating that the Veteran continued to suffer from symptoms since he came back from the war in Vietnam, e.g., being scared of everything that explodes, people yelling, loud music and hard sounds; See also November 1, 2017 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD and lay correspondence dated November 1, 2017. Consideration should be given to the Veteran's lay statements. (b) If a diagnosis of PTSD is made, the stressor(s) relied on should be identified should be identified. (c) For each psychiatric diagnosis, state whether it is as likely as not that the disorder had its onset in service or is otherwise etiologically related to the Veteran's active service, to include being the result of an incident or in-service stressor. The VA examiner should provide clear rationale for all opinions expressed, including by citing to the record. 3. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review the examination report to ensure that it is in compliance with the directives of this remand. Take any necessary corrective action, and complete any other necessary additional development. 4. Thereafter, readjudicate the issue on appeal as noted above. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.