Citation Nr: 21066242 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 19-28 946A DATE: October 29, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1958 to January 1961 and from April 1962 to April 1969. The appeal arises from a September 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for service connection for an acquired psychiatric disorder, which included finding no diagnosis of posttraumatic stress disorder (PTSD). In August 2020, the Board denied service connection for an acquired psychiatric disorder and the Veteran appealed. In August 2021, the Court of Appeals for Veterans Claims (Court) remanded the case pursuant to the parties' Joint Motion for Remand (JMR), with instructions for the Board to determine whether the VA's duty to assist was met with respect to the Veteran's private treatment records. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends he has a diagnosis of PTSD and that the condition is related to his military service. VA treatment records from March and December 2015 indicate the Veteran was seeking treatment outside of the VA healthcare system from a private mental health practitioner, with several references to the Veteran's "civilian" mental health counselor. A December 2015 record goes into detail, commenting that the Veteran saw a "psychologist in the community" every two weeks for the past 15 years, as well as a psychiatrist who prescribed Cymbalta, which he reportedly had been taking for 15 years as well. The Veteran's September 2017 VA mental health examination also references the Veteran's "private physician" who had prescribed him antidepressants, and the VA examiner specifically annotated she had reviewed the December 2015 records. The VA examiner did not diagnose the Veteran with PTSD and determined the diagnosis of adjustment disorder with depressed mood was less likely than not related to service; however, the VA examiner did not have access to the Veteran's private treatment records. The Veteran's congressional inquiry in August 2018 contains a statement from the Veteran's spouse which lists the surnames of two such private providers who have reportedly treated the Veteran in connection with his claimed mental health conditionsDr. R., a family medicine doctor, and Dr. S., a psychiatrist. The Veteran has not submitted records from these providers or any other private providers, and the VA has not attempted to obtain them. Because of this, in the August 2021 Order granting the JMR, the Court agreed that a remand was appropriate for the Board to determine whether VA met its duty to assist regarding the private treatment records of Dr. R. and Dr. S. The Board finds that VA was on notice of the existence of private treatment records based on the Veteran's 2015 VA treatment notes and the September 2017 VA examination explicitly referring to a "private physician" prescribing antidepressant medication and indicating the examiner's review of a VA record which detailed the Veteran's history of private mental health treatment. 38 C.F.R. § 3.159(e)(2). The RO should have attempted to contact the Veteran and obtain the records. Where the VA is on notice that records supporting a Veteran's claim may exist, VA has a duty to assist the Veteran to locate and obtain these records. See Sullivan v. McDonald, 815 F.3d 786, 791 (Fed. Cir. 2016); see also Solomon v. Brown, 6 Vet. App. 396, 401 (1994). Therefore, in an effort to properly assist the appellant with the development of his claim, further development is in order. Additionally, the Veteran is reminded that the duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The matter is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file, the outstanding private medical records relevant to the Veteran's claim. Specifically, ask the Veteran to submit the private treatment records, or complete and return the appropriate authorization and release forms, i.e., VA Form 21-4142, for Dr. R., the Veteran's reported family doctor, and Dr. S., the Veteran's reported psychiatrist, providing their full names and contact information. Then, make two requests for the authorized records from each provider, unless it is clear after the first request that a second request would be futile. All attempts to retrieve such records must be associated with the claims file. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented, in accordance with 38 C.F.R. § 3.159(e). 2. Associate with the claims file any outstanding/ongoing VA treatment records that pertain to the Veteran's mental health condition or treatment. 3. After Steps 1-2, obtain a medical opinion from an appropriate clinician as to the existence and etiology of any acquired psychiatric condition. The clinician should be provided with the Veteran's entire claims file, including any newly associated private treatment records or recent VA treatment records. The clinician should provide opinions responsive to the following: (a.) Identify (by diagnosis) each acquired psychiatric disorder found. (b.) For all diagnosed acquired psychiatric disorders, the clinician must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability is etiologically related to the Veteran's military service. A complete and fully explanatory rationale must be provided for any opinion offered. The need for another mental health examination is left to the examiner's discretion. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.