Citation Nr: 21071388 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 20-12 909 DATE: November 30, 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 August 1987 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board denied service connection for an acquired psychiatric disorder. The Veteran appealed the May 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Joint Motion for Remand (JMR), the parties agreed that vacatur and remand for readjudication consistent with the JMR was appropriate as the Board's May 2020 decision failed to provide adequate reasons or bases for its decision. As noted in the JMR, the Board is required to address evidence it finds persuasive or unpersuasive and provide reasons for its rejection of any material evidence favorable to the Veteran. See JMR, page 2. The parties found that in the analysis as to why a VA examination was not warranted, the Board did not address the Veteran's statements in VA mental health treatment records of intrusive memories related to being a corpsman and caring for injured veterans in service. Id., at 2-3. The Court issued an order granting the JMR in August 2021. In accordance with the vacatur and remand by the Court, the Board finds that a remand is necessary to provide the Veteran a VA examination and medical opinion. VA is obligated to provide an examination and obtain a medical opinion in an initial claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has been diagnosed with anxiety disorder, panic disorder, moderate recurrent major depression, major depressive disorder, alcohol use disorder, and unspecified trauma and stressor related disorder. See November 2017 and April 2018 Private Treatment Records, October 2018 VA Psychiatric Consultation. A December 2017 private treatment record also noted significant symptoms in the category of PTSD. Moreover, in the October 2018 VA psychiatric consultation and November 2018 VA mental health consultations the Veteran endorsed chronic worry and nervousness since his time in the Navy and intrusive memories, including nightmares, related to being a corpsman and caring for injured veterans. Although there is no evidence of mental health complaints or treatment in the service treatment records, the Board finds that the Veteran's report of having intrusive thoughts related to his military service, coupled with the evidence of current mental health disorder, triggers the duty to assist in affording him a VA examination and medical opinion. See McLendon, supra; Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence."). The Board notes that the Veteran's private attorney revoked his representation and withdrew as the Veteran's representative prior to the certification of the case back to the Board. The record reflects that a notice was provided to VA in September 2020, stating that the attorney was withdrawing from representation and stated he had notified the Veteran of the withdrawal. The Board finds that the attorney has properly revoked representation. See 38 C.F.R. § 14.631(c). To date, the Veteran has not submitted documentation appointing a new representative; as such, the Board will proceed under the assumption that he wishes to represent himself. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination and medical opinion to help determine the likely etiology of the claimed acquired psychiatric disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Diagnose any acquired psychiatric disorder, to include anxiety disorder, panic disorder, moderate recurrent major depression, major depressive disorder, alcohol use disorder, and unspecified trauma and stressor related disorder, shown on current examination or at any time during the appeal period. If the examiner finds any of the previously diagnosed disorders are no longer present, or were erroneously diagnosed, the examiner should explain how they have resolved. (b) For each diagnosed acquired psychiatric disorder, provide an opinion as to whether it at least as likely as not (50 percent or higher probability) had its onset during service or is otherwise related to it, to include as related to the Veteran's MOS as a corpsman. *In answering these questions, the examiner is asked to consider the Veteran's statement in the October 2018 VA psychiatric consultation and November 2018 VA mental health consultations that he has chronic worry and nervousness since his time in the Navy and has intrusive memories, including nightmares, related to being a corpsman and caring for injured veterans. A complete rationale should be provided for all opinions. 3. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.