Citation Nr: 21070263 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-44 344 DATE: November 23, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1976 to December 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran failed to appear for a scheduled virtual tele-hearing before a Veteran Law Judge. As no further communication has been received from the Veteran with regard to the hearing, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Unfortunately, the Veteran's appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran filed a claim for service connection for depression and delusions. Medical evidence of record indicates that the Veteran has been diagnosed with major depressive disorder, psychotic disorder, and polysubstance dependence. The Board has recharacterized his claim to an acquired psychiatric disorder, which encompasses all potential psychiatric diagnoses of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Initially, the Board notes that military personnel records indicate that the Veteran was honorably discharged from service due to "unsuitability." However, the basis of this finding of unsuitability is unknown because additional service treatment or personnel records pertaining to the Veteran's discharge are not available. In this regard, the Board notes that the RO requested the Veteran's service treatment records (STRs) from the National Personnel Records Center (NPRC) in September 2014. However, the NPRC response only provided very limited military personnel records, prompting the RO to notify the Veteran in an August 2017 letter that his STRs cannot be located and are therefore unavailable for review. VA has a statutory duty to assist claimants in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty to assist requires VA to make as many requests as are necessary to obtain relevant records from a Federal department or agency, such as a service department. VA may only end these efforts if it has concluded that the records sought do not exist or that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Review of the record shows that the RO only made one attempt to obtain the Veteran's STRs. Notably, it made no follow-up inquires with NPRC as to why the Veteran's STRs were not available, or whether there were additional military personnel records. This is not sufficient effort to fulfill VA's heightened duty under 38 C.F.R. § 3.159 to obtain records in the custody of a Federal department or agency. As such, remand is required for the RO to make further efforts to obtain the Veteran's outstanding STRs, as well as any outstanding personnel records pertaining to the Veteran's "unsuitability" for service and subsequent discharge. On remand, the RO must undertake appropriate action pursuant to 38 C.F.R. § 3.159 to identify and obtain these records. Next, the Board notes that, to date, the Veteran has not been afforded a VA examination to assess the nature and etiology of his acquired psychiatric disorder, despite the presence of a current psychiatric diagnosis and evidence of an in-service event (resulting in a finding of "unsuitability" and early discharge) that may be related to such diagnosis. Therefore, the Board finds that, on remand, the Veteran must be afforded a VA examination and medical opinion to determine the nature and etiology of his claimed condition. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). All psychiatric conditions diagnosed during the pendency of the claim must be addressed, even if not currently present on examination or deemed resolved, prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Accordingly, the matter is REMANDED for the following actions: 1. Undertake appropriate efforts to request and associate with the claims file any outstanding service treatment records and military personnel records, to specifically include records pertaining to the Veteran's December 1976 discharge from service based on his "unsuitability" for service. Make as many requests as are necessary to obtain the records. If the aforementioned records cannot be located, the RO must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain these government records would be futile. The RO should then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Obtain any outstanding VA treatment records. 3. Then, schedule the Veteran for a VA examination with a qualified VA mental health professional to determine the nature and etiology of any currently-diagnosed psychiatric disorder, to include major depressive disorder, psychotic disorder, and polysubstance dependence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. A detailed history should be procured from the Veteran during the examination. All indicated diagnostic testing should be conducted. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Set forth all currently-diagnosed acquired psychiatric disorders, including those diagnosed or present during or approximate to the appeal period (since July 2014). (b) Is it at least as likely as not (50 percent probability or greater) that any psychiatric disorder diagnosed during the pendency of the appeal, even if currently resolved, was incurred in or caused by the Veteran's active duty? In providing a response to the above, the examiner must review and comment on the service treatment records and/or military personnel records (if any) pertaining to the Veteran's "unsuitability" for service and subsequent discharge. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran is competent to report his psychiatric symptoms and history and such reports must be acknowledged and considered in formulating any opinion. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disorder and military service. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.