Citation Nr: 21065216
Decision Date: 10/25/21	Archive Date: 10/25/21

DOCKET NO. 14-35 510
DATE: October 25, 2021

REMANDED

Service connection for an acquired psychiatric disorder.

REASONS FOR REMAND

As an initial matter, the Veteran's claim of service connection for an acquired psychiatric disorder was previously styled both as a claim for a nervous disorder and as a claim for a psychiatric disorder.  Medical records reveal that he has also been diagnosed with major depressive disorder (MDD) and an anxiety disorder.  Accordingly, the Board has recharacterized the issue as an acquired psychiatric disorder to better reflect the scope of the claim.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  

Next, procedurally, the Board denied service connection for a psychiatric disorder in January 2020.  The Veteran appealed to the Veterans Claims Court and in November 2020, the Court Clerk granted a Joint Motion for Partial Remand (JMPR) which vacated the Board's decision and remanded the case for further development consistent with the JMPR.  

In May 2021, the Board remanded the Veteran's claim.  The Board observed that multiple medical treatment records since 2010 diagnosed and noted treatment for an anxiety disorder and that a private clinician diagnosed both a general anxiety disorder and MDD in February 2020.  Accordingly, the Board ordered additional development pursuant to the JMPR, to include obtaining a new VA examination and opinion as to whether the Veteran's acquired psychiatric disorder was etiologically related either to his military service or to a service-connected disability.  

In June 2021, a VA examiner offered that the Veteran did not have and had not been previously diagnosed with a psychiatric disorder.  The examiner found that his medical records did not reflect formal psychiatric findings or treatment and opined that his symptoms did not fulfill the criteria for any Axis I diagnosis according to the DSM-V.  The examiner ultimately asserted that, as there was no evidence of an Axis I psychiatric diagnosis, a nexus opinion could not be rendered.  

However, for purposes of eligibility for service connection, a current disability will be established if diagnosed over the course over the entire appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  Therefore, notwithstanding the June 2021 examiner's evaluation, the Veteran has been diagnosed with an acquired psychiatric disorder, to include generalized anxiety disorder and MDD, during the course of the appeal.  As such, a medical opinion is required to determine the nature and etiology of the Veteran's previously diagnosed acquired psychiatric disorder.  

The matter is REMANDED for the following action:

1. Identify and obtain any pertinent, outstanding VA and private medical treatment records and associate them with the claims file.  

2. Direct the claims file to a clinician for an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any identified psychiatric disorder, to include an anxiety disorder and MDD is: (a) etiologically related to service and (b) caused or aggravated by a service-connected disability, to specifically include hearing loss and tinnitus.

The clinician is advised that for purposes of service connection, the Veteran's previously-diagnosed anxiety disorder and MDD constitute current diagnoses.  

In forming the opinions, the clinician must address a February 2020 private medical examination diagnosing an anxiety disorder and MDD and offering that the conditions were proximately due to or aggravated by his service-connected bilateral hearing loss.  

A rationale for all opinions must be provided.  

3. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled.  

 

 

L. HOWELL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Spigelman, 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.