Citation Nr: 21066320 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-14 704 DATE: October 29, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1977 to May 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision. In July 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. The Veteran waived consideration by a Department of Veterans Affairs (VA) Regional Office (RO) for any additionally received evidence. A transcript of the hearing is associated with the claims file. As an initial matter, the issues of service connection for anxiety and depression were characterized in an August 2017 rating decision as claims to reopen the issues denied in a March 2016 rating decision. However, the Board finds that the issues have been pending since the original claims were received in November 2015. In June 2016 (within three months of the March 2016 rating decision), VA treatment records were associated with the claims file that included a May 2016 initial evaluation by VA mental health services. The evaluation included a report by the Veteran that he was "jumped by 2 guys in the barracks." This report was a factually distinct scenario than had previously been considered, and it was material because it spoke to whether the Veteran's psychiatric disorder could have been incurred in service. As this evidence was new and material and received prior to the expiration of the appeal period, the March 2016 rating decision is not final. 38 C.F.R. § 3.156(b). Finally, the August 2017 rating decision on appeal adjudicated the Veteran's claims for entitlement to service connection for anxiety and depression as separate issues. As the Veteran has multiple psychiatric diagnoses of record, the Board considers the claim broadly as one for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the Board also finds that the instant appeal does not include a claim as to PTSD because the issue was separately adjudicated in a June 2019 rating decision, which the Veteran did not appeal. Entitlement to service connection for an acquired psychiatric disorder The RO submitted a request in August 2018 for verification of the Veteran's report that he witnessed a suicide. In January 2019, a follow-up request was sent, but no response was ever added to the claim file. Despite this, the June 2019 rating decision found that there was insufficient evidence to attempt to verify the event. However, the only information the Veteran did not provide was the soldier's name, which he said he did not know. The location, month and year, and method of suicide appears to provide sufficient detail to research the Veteran's contention. Documentation as to the responses received to the requests for verification is needed. In the Veteran's July 2021 hearing, he reported that he had received additional mental health treatment since the most recent records associated with the file in January 2020. Those records were not included with any of the documents submitted by the Veteran following the hearing. Thus, the Board must remand the claim to have the treatment records associated with the claim file. Of note, though the Veteran reported that the treatment was at a VA facility, an August 2019 VA treatment record shows the Veteran was discharged from VA mental health services and referred to the Vet Center for further treatment. Private treatment records received in January 2020 show that that Veteran intended to continue his mental health counseling at that practice as of the last appointment in December 2019. Thus, it is necessary to obtain outstanding VA and private treatment records on remand. The Board is not making a finding as to the credibility of the Veteran's reported stressors at this time. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records, including for the period from January 2020 to the present, along with all relevant outstanding attachments to the Veteran's VA medical record. 2. Attempt to obtain the Veteran's treatment records from the Vet Center near McAllen, Texas. Document any attempts made and responses received. 3. Ask the Veteran to complete a VA Form 21-4142 for Donna Family Health for treatment records since January 2020 and attempt to obtain the records. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 4. Document all attempts to corroborate the Veteran's in-service stressor regarding witnessing another soldier's suicide by jumping from a building in September 1977 at Camp Pendleton and document all responses received. 5. Schedule the Veteran for a VA examination for his claimed acquired psychiatric disability, to include anxiety and depression and PTSD. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Identify all of the acquired psychiatric disorder that meet, or have met, the DSM-5 diagnostic criteria at any time since the Veteran's claim, or in close proximity thereto, to include major depressive disorder, and anxiety disorder, and adjustment disorder. (b.) If PTSD is diagnosed, the examiner should indicate whether such diagnosis is the result of a verified in-service stressor or personal assault. If the examiner diagnoses PTSD based on personal assault, he or she should also describe the markers that suggest such occurred. (c.) As to each mental health disorder diagnosed over the appeal period other than PTSD, and to include generalized anxiety disorder, major depressive disorder, and adjustment disorder, is such disorder at least as likely as not related to service. The examiner is advised that the law does not require an event or injury to be the sole cause by which a condition occurs. It is not even necessary that a condition be 50% at fault. Rather, it must be "at least as likely as not" that it is a contributing cause. (d.) As to each mental health disorder diagnosed over the appeal period, and to include generalized anxiety disorder, major depressive disorder, and adjustment disorder, is such disorder at least as likely as not proximately due to his service-connected bilateral hearing loss or tinnitus? (e.) As to each mental health disorder diagnosed over the appeal period, and to include generalized anxiety disorder, major depressive disorder, and adjustment disorder, is such disorder at least as likely as not aggravated by (any increase in disability) his service-connected bilateral hearing loss or tinnitus? A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beeler, C. 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.