Citation Nr: 21070416 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-38 401 DATE: November 23, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for migraines disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. A December 2019 Board decision denied the claims of (1) entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depressive disorders, and (2) entitlement to service connection for migraines, to include as secondary to acquired psychiatric disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2021, in a nonprecedential Memorandum Decision, the Court vacated the December 2019 Board decision and remanded the Veteran's appeal to the Board. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran, and his representative, contends that his acquired psychiatric disorder stems from service. Specifically, the Veteran argues that his acquired psychiatric disorder is related to in-service event, described as denial for volunteer assignment to the Republic of Vietnam during the Vietnam era. In support of this contention, the Veteran has submitted, among other things, copies of VA treatment records, a private examination report, medical articles, and a lay statement from a prior Commanding Officer. For reasons explained below, the Board finds that remand is necessary. First, the record reflects a diagnosis for major depressive disorder and mixed anxiety and depressive disorder. Next, military personnel records, submitted by the Veteran, show that he requested assignment to the Republic of Vietnam during the Vietnam era, twice, and was denied. In the course of this appeal period, the record, however, does not reveal that the agency of original jurisdiction (AOJ) has obtained a medical examination or opinion addressing the Veteran's acquired psychiatric disorder. It is noted that VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Therefore, given the above, there is competent evidence of a potential relationship between the Veteran's acquired psychiatric disorder and his military service to warrant remand for a VA examination and medical opinion. Id. at 79. The Board observes that the Veteran has submitted competent medical evidence indicating that his acquired psychiatric disorder is related to his claimed in-service event. See, e.g., VA Examination (October 2021), Medical Treatment Record-Government Facility (February 2019), Medical Treatment Record-Government Facility (October 2018), Correspondence (December 2016), CAPRI (July 2016), CAPRI (May 2008). The Board finds the medical evidence inadequate to support the claim. Here, the evidence, independently, or collectively, does not contain sufficient information to "not require the Board to exercise independent medical judgment." Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (citing Colvin v. Dewinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may only consider independent medical evidence and may not substitute its own medical opinion). In this regard, the medical evidence does not support the conclusion with an analysis that the Board can consider and weigh against the other evidence of record. Indeed, at much, the medical evidence reflects conclusory statements and lack a supporting analysis. For example, private medical opinion, dated in October 2019, reveals the following: The origin of the Veteran's major depressive disorder and anxiety are due to his time in the military when he was denied active combat in Vietnam even though he volunteered for the war . . . . This opinion, nevertheless, does not provide the Board with an analysis supporting the conclusion. Further, the opinion does not show a rationale or medical discussion on competent medical evidence revealing an onset of the Veteran's acquired psychiatric disorder as due to nonservice-related events. See, e.g., CAPRI (November 2002) (finding that the Veteran "underwent a severe depression in large part due to his wife's serious pulmonary illness . . . ."); see also CAPRI (February 2016) (revealing that the Veteran reported being "very depressed and guilty after his wife died in the accident where he was driving"). Indeed, none of the medical evidence, as outlined above, reveals a rationale or medical discussion explaining these contrary findings. It is noted that the Board may reject a medical opinion that is based on the Veteran's statement that is contradicted by other evidence of record. Swann v. Brown, 5 Vet. App. 229, 233 (1993) The Board moreover may not rely on conclusory statements, whether private or VA, if it lacks supporting analysis. Stefl, 21 Vet. App. at 124 (stating that the Board may not assess the probative value of "a mere conclusion by a medical doctor"). Second, the record also indicates that there may be outstanding military personnel records that are pertinent to the Veteran's claim. In this regard, the record reflects that the Veteran submitted military personnel records showing that he requested an overseas tour to Vietnam. The record, however, does not show that the AOJ requested the Veteran's military personnel records. Indeed, in this instance, it appears that the AOJ limited its request for military records to just service treatment records. See VA Form 21-3101 (October 2013). As such, on remand, the AOJ should attempt to obtain outstanding service personnel records, if any. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159(c)(3). Lastly, remand is also required to attempt to obtain reasonably identified relevant outstanding treatment records. In this regard, the record reasonably identifies relevant outstanding non-VA treatment records. Specifically, VA treatment record, dated in September 2001, reflects that the Veteran reported receiving treatment at Little Company of Mary Hospital for panic attacks. The record, however, does not reveal that VA has attempted to obtain private treatment records from this provider, to include asking the Veteran to submit an authorization for release of the private treatment records. As these treatment records, if obtained, could bear on the outcome of the Veteran's claim, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is also required to allow VA to obtain these records. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Entitlement to service connection for migraines disability is remanded. The Veteran, and his representative, contends that his migraines disability is secondary to his acquired psychiatric disorder. The Board finds the Veteran's claim is inextricably intertwined with the claim of entitlement to service connection for an acquired psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claim. The matters are REMANDED for the following actions: 1. Obtain the Veteran's complete service personnel records. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms for his acquired psychiatric disorder, to include from Little Company of Mary Hospital. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain all VA treatment records dated from July 2016 to the Present. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any acquired psychiatric disorder. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. In rendering the below, the opinion should include, among other things, a discussion of the Veteran's documented history and assertions. The clinician must opine on: (a) Whether any acquired psychiatric disorder at least as likely as not (1) had its onset during service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability is proximately due to or the result of in-service event, described as denial for volunteer assignment to the Republic of Vietnam during the Vietnam era. Explain. (b) If the Veteran is found to have an acquired psychiatric disorder service-connected, then opine on whether any migraines disability is at least as likely as not (1) proximately due to service-connected acquired psychiatric disorder, or (2) aggravated beyond its natural progression by service-connected acquired psychiatric disorder. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 5. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.