Citation Nr: 21073033 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-11 325 DATE: December 7, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), posttraumatic stress disorder (PTSD), and/or anxiety disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1973 to October 1976. He also had service in the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO initially denied the Veteran's claim in a June 2017 rating decision, and continued that denial in January 2018, March 2018, and August 2018 rating decisions, as well as in the October 2018 rating decision on appeal. In November 2017 (within a year of the original, June 2017 rating decision), the Veteran filed a supplemental claim for service connection for depression and/or anxiety. In June 2018, he filed another supplemental claim for service connection for an anxiety condition in response to the January 2018 and/or March 2018 rating decisions. Still further, in November 2018, within a year of all but the June 2017 rating decision, he filed a notice of disagreement (NOD) as to service connection for an anxiety condition. Inasmuch as the Veteran has continuously prosecuted his claim and he filed a NOD within a year of all but the June 2017 rating decision, the Board finds that the current claim is best viewed as an original claim, rather than an application to reopen. See 38 C.F.R. § 3.156(b). In May 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Veteran's claim for service connection for depression and/or anxiety has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include MDD, PTSD, and/or anxiety disorder, is remanded. The Veteran contends that his acquired psychiatric disorders were incurred in or caused by service. Specifically, he testified at the May 2021 Board hearing that he was in a happy relationship when he went into service in October 1973, but that during service infidelity in his marriage took a toll on him as far as being able to perform his job. He further testified that it progressed to a point where his spouse took his children and moved to Las Vegas, Nevada, that this affected his concentration during service, and that he received Article 15s as a result. As an initial matter, the Board notes that the Veteran has a current diagnosis of MDD, as demonstrated by a November 2017 VA treatment record. April 2018 and June 2018 private treatment records also show a current diagnosis of PTSD, but it remains unclear whether that diagnosis conforms to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). In any event, there is no material dispute that the Veteran has a current diagnosis of MDD. The first element of service connection has therefore been established. Regarding an in-service event, the Board notes at the outset that the Veteran's service treatment records (STRs) are negative for complaints of, treatment for, or diagnoses related to mental health disorders. However, military personnel records (MPRs) include two Article 15s. The first is dated from June 1974 and was given due to the Veteran being absent from his duties. The second was given in May 1976 due to the Veteran failing to go to his duty station at the time prescribed. A June 1976 performance report also notes that the Veteran was undergoing severe mental strain associated with personal problems, and that this gave him a very bad outlook and a negative attitude. The report noted further that he had potential for becoming an outstanding soldier, but that recently he had allowed personal problems to interfere with his duties and that this had resulted in poor performance. An April 1982 MPR from a period of the Veteran's service in the National Guard notes that he was reduced in grade at that time, a May 1982 MPR shows that he was again absent from scheduled unit trainings, and a January 1983 MPR shows that he was recommended for discharge from the North Carolina Air National Guard due to unsatisfactory participation. While STRs therefore do not reflect treatment for any mental health disorder in service, MPRs confirm that he was suffering from mental strain or stress of some kind during service. Regarding the link, or nexus, between the Veteran's current diagnosis(es) and an in-service event, the claims file contains several treatment records and one statement which indicate that there may be a link between the two. In a November 2017 private treatment note, a provider noted that the Veteran began feeling depressed in his early 20s when his wife left him when he was in the military. In an April 2018 private treatment record, the provider noted the Veteran's report that he suffered from traumatic experiences during service, and that upon his stationing in Hawaii his wife along with their 2 children stayed in the continental 48 states, which put stress on his relationship with them. The provider noted further that the Veteran divorced due to events of grief, which caused a chain of events, and that he was reprimanded with disorderly conduct during service and demoted. In a June 2018 private treatment record, K.H., M.D. stated that the Veteran had apparently suffered from anxiety and mood symptoms from early adult life extending to the present date. He noted that the Veteran experienced significant emotional trauma during his years of military service and opined that it was likely that the circumstances contributed significantly to his condition. In a July 2018 VA treatment record, the provider noted that the Veteran had to go to Hawaii, that his wife and children did not go with him, and that the Veteran developed a lot of anger. He further noted that while the divorce took place after service, due to abandonment issues the Veteran had relationship issues in his current marriage. Finally, in a September 2018 statement, A.D.S., M.S.W., a VA provider, noted that the Veteran reported that his depression began while he was in the military due to the discovery of his wife's infidelity and various other incidents during service. The Board has considered these records and statement and finds them insufficient to support an award of service connection. While each record indicates that the Veteran's depression began in service, most of them are based on the Veteran's reports, without consideration or review of the Veteran's STRs, MPRs, and/or other medical evidence of record. Regarding Dr. H.'s June 2018 opinion that it was likely that the Veteran's significant emotional trauma during his years of military service contributed significantly to his current condition, the Board finds that the opinion is not supported by sufficient rationale. Still further, as with the other statements, it does not appear that Dr. H. reviewed any STRs, MPRs, or other medical records. The Veteran has also submitted three lay statements in support of his claim, including in November 2017 from E.P., the Veteran's current spouse, in October 2018 from his sister, G.A., and in May 2021 from E.W., a friend. Each of these statements outline the Veteran's mental health symptoms and indicate that his mental health problems were caused by the Veteran's relationship problems during service. In light of the presence of a current diagnosis, MPRs indicating mental health problems in service, and Dr. H.'s June 2018 opinion and other medical records indicating that there may be a link between the two, the Board finds that a VA examination and opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that there appear to be missing private treatment records and missing updated VA treatment records which are relevant to the issues on appeal. In November 2017, the Veteran provided a release and identified a Dr. J.G. as a provider who treated him for mental health problems from January 1981 to January 1983. That same month, the RO attempted to obtain Dr. G.'s records but noted that the number the Veteran provided on his release was a residential number, and that an extensive search failed to locate any additional contact information. While the RO notified the Veteran by letter that same month that it had requested copies of treatment records from Dr. G., it did not subsequently inform him that the records were not available or that they could not be obtained. The Board finds that further efforts should have been made by the RO to obtain the records of Dr. G., to include informing the Veteran that the phone number he provided was not correct and inviting him to submit the records himself. Regarding updated VA treatment records, the Board notes that in May 2021, the Veteran submitted partial VA treatment records showing that he was currently undergoing cognitive behavioral therapy through VA. Inasmuch as a complete copy of updated VA treatment records could have a bearing on the outcome of the Veteran's claim, the Board finds that on remand, efforts to obtain them should be made. As a final matter, the Board notes that the evidence of record indicates that the Veteran may be, or during the period on appeal may have been, in receipt of disability benefits from the Social Security Administration (SSA). A May 2011 SSA Profile and Benefit Data report notes a disability onset date of May 15, 2011. Thus far, it does not appear that any attempt has been made to obtain a copy of the medical records underlying the SSA's possible award. Because the records from SSA could contain information pertinent to the matter on appeal, efforts should be made to procure those records as well. This matter is REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from Dr. G. at G. & S. Associates in Greensboro, North Carolina, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Ask the SSA to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA disability benefits, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and his representative should be notified. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA mental disorders examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any acquired psychiatric disorders, to include MDD, that the Veteran has had since February 2017 (when he first filed his claim for service connection). In so doing, the examiner should consider the November 2017 VA treatment record showing a diagnosis of MDD, and the April 2018 and June 2018 private treatment records showing a diagnosis of PTSD. For each identified disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise related to, the Veteran's service. In so doing, the examiner should consider the June 1976 performance report indicating that the Veteran was undergoing severe mental strain associated with personal problems during service; the June 1974 and May 1976 Article 15s showing discipline for problems during his active service; the April 1982 MPR showing that he was reduced in grade at that time; the May 1982 MPR showing he was absent from scheduled unit trainings; the January 1983 MPR showing he was recommended for discharge from the North Carolina Air National Guard due to unsatisfactory participation; and the Veteran's general contention that discipline and demotion during service were a result of mental health symptoms related to problems in his marriage relationship. The examiner should also consider the November 2017 and April 2018 private treatment records, and the July 2018 VA treatment record, indicating that the Veteran's depression began during service; the June 2018 private treatment record/statement of Dr. G.; and the September 2018 statement of Ms. S. Finally, the examiner should consider Ms. P.'s November 2017, Ms. G's October 2018, and Mr. W.'s October 2021 lay statements. A complete medical rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.