Citation Nr: 21071343 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-51 307 DATE: November 30, 2021 REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1994 to March 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought. Accordingly, the Veteran's appeal as to service connection for an acquired psychiatric disorder has been expanded to include entitlement to service connection under the theory of secondary service connection and has been characterized as stated above. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). The Veteran contends that he has an acquired psychiatric disorder that is directly related to his active service. Additionally, the VA treatment records reflect that the Veteran's anxiety may be secondary to his service-connected fibromyalgia. In the September 2017 statement of the case, the RO reported that the Veteran did not attend a scheduled VA examination related to his claim for entitlement to service connection for an acquired psychiatric disorder, and did not show good cause for his failure to appear. In his October 2017 substantive appeal, the Veteran explained that he was notified in an April 2015 phone call that his VA examination was scheduled for May 2015. The Veteran further explained that he would be out of town for work during that time and requested that his VA examination be scheduled for November 2015. In support of his contention, the Veteran submitted a DD Form 1610, Request for Authorization for TDY Travel of DOD Personnel, reflecting that he was assigned to travel starting May 3, 2015 for approximately 83 days. VA regulations provide that when a claimant, without good cause, fails to report for an examination, action shall be taken, to include rating based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655 (a). The Board finds that the cited reasons for not attending the scheduled VA examination constitutes good cause. 38 C.F.R. § 3.655 (a). As a result, a remand is required to schedule a new VA examination. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from December 2019. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A; Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matter being remanded, to include from December 2019. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any acquired psychiatric disability demonstrated since service, found on current examination or in the record. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability is related to the Veteran's active service. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability is proximately due to or the result of the Veteran's service-connected disabilities, specifically to include his service-connected fibromyalgia. (d.) If not, whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected fibromyalgia. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for an acquired psychiatric disability may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.