Citation Nr: 21064416 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-13 258 DATE: October 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, and a mood disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2000 to December 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in the February 2017 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. Due to the COVID-19 pandemic and resulting closures, the Veteran was offered and was scheduled for a tele-hearing in August 2021 but did not appear. The Veteran 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 As such, his hearing request is considered withdrawn.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 Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding, and in light of multiple acquired psychiatric diagnoses reflected in the evidence of record, the Board has recharacterized the claim as reflected on the title page. The Veteran's service treatment records (STRs) cannot be located and have been found to be unavailable for review. See June 2015 Correspondence. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a claim for service connection. Rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and a mood disorder The Veteran contends that he has an acquired psychiatric disorder related to his military service. He reports that he was exposed to the sexual activity of other servicemembers in the barracks as an unwitting witness and that he found the environment to be toxic and traumatic. He has not been accorded a VA examination in conjunction with this appeal. Post-service treatment records show complaints of, and treatment for, a major depressive disorder, anxiety, and a mood disorder. Notations of bipolar disorder, schizophrenia, and schizoaffective disorder have also been made. The Veteran describes continued mental health symptoms since active duty. He additionally contends that he has been diagnosed with PTSD, although a diagnosis of such is not included in the available private treatment records. The Board finds a remand is necessary to obtain a VA examination and nexus opinion on the nature, extent, and etiology of the Veteran's acquired psychiatric disorder, to include PTSD, depression, anxiety, bipolar disorder, schizophrenia, schizoaffective disorder, and a mood disorder. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion, when there is (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. In this case, the Veteran's STRs are unavailable. However, post-service treatment records indicate both a diagnosis of, and treatment for various mental disorders, and the Veteran asserts that he has experienced mental health symptoms since service due to events that he witnessed during service. Therefore, the crucial remaining issue is whether there is a nexus between the Veteran's current acquired psychiatric disorder and his service and whether his disability is consistent with his assertions of what happened in service and since service. As the Veteran has contended that his acquired psychiatric disorder may be associated with service via continuity of symptomatology, a remand for a medical evaluation and nexus opinion is warranted to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 79. Given the lack of adequate medical evidence to make a decision on this matter, the Veteran should be afforded a VA examination to address the complete nature and etiology of any acquired psychiatric disability he may have. Additionally, when there is an indication that a disorder for which the Veteran seeks service connection preexisted service, the presumption of soundness must be addressed. Veterans are presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. Id. Where a condition is not noted on entry, the presumption of soundness may be rebutted only if the examiner determines that (1) the condition clearly and unmistakably preexisted the Veteran's service, and (2) it clearly and unmistakably was not aggravated by service. In this case, the Veteran's private mental health treatment records note a history of two suicide attempts as a teenager, possible hospitalization for mental health as a teenager, and a history of behavior problems requiring outpatient psychotherapy during his adolescence. As noted at the introduction to this decision, the Veteran's STRs are unavailable, but the evidence of record suggests that a psychiatric disorder may have preexisted service. As such, the examination conducted on remand should include a discussion of whether the condition clearly and unmistakably preexisted the Veteran's service and, if so, whether it clearly and unmistakably was not aggravated by service. Accordingly, this matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records and associate them with the claims file. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD, depression, anxiety, bipolar disorder, schizophrenia, schizoaffective disorder, and a mood disorder, that he may have. Following review of the claims folder, as well as an interview with and examination of the Veteran, the examiner should: a. Identify/diagnose any acquired psychiatric disorder (to include PTSD, depression, anxiety, bipolar disorder, schizophrenia, schizoaffective disorder, and a mood disorder) that presently exists or that has existed during the appeal period. b. For any diagnosed psychiatric disorder, state whether the disability (1) clearly and unmistakably preexisted service and, (2) if so, whether the disability was clearly and unmistakably aggravated by active service beyond the normal progression of the disease? Please explain why or why not, considering the Veteran's statements and private treatment records. c. If any diagnosed psychiatric disorder did not clearly and unmistakably preexist service, state 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. In particular, the examiner should opine as to whether any such diagnosed psychiatric disorder is consistent with the Veteran's reported experiences during service, to include being exposed to the sexual activity of other servicemembers, and his problems and symptoms since service. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide any requested opinion, he or she should explain why. 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 the scheduled VA medical examination may impact the determination made. 38 C.F.R. (CONTINUED ON NEXT PAGE) § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. 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 A. Goreham 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.