Citation Nr: 21074909 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 09-07 295 DATE: December 16, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had honorable active duty service from March 1970 to March 1972. He also served from March 1972 to December 1974 and was discharged under other than honorable conditions for that period. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office. In August 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony has been associated with the evidentiary claims file. The Board notes that a letter informing the Veteran of an upcoming hearing, and the option to participate in that hearing virtually, was erroneously sent by the Board in September 2020. The Board, however, honored the Veteran's October 2020 request to participate in another hearing. At the October 1, 2021 video conference hearing, the Veteran spoke with his representative and decided to waive his appearance, indicating that he wished that his appeal be adjudicated without testifying before the VLJ. As the Veteran's prior hearing request had already been addressed by the Board, no new hearing is required. Accordingly, the Board will proceed with adjudication based on the evidence of record. This case was last before the Board in January 2020, at which time the extensive procedural history of this case was detailed, including the June 2017 Memorandum Decision issued by the United States Court of Appeals for Veterans Claims (Court) that vacated the Board's March 2016 decision denying the claim; that procedural history is incorporated herein by reference. In January 2020, the Board remanded the matter for additional development and VA medical opinion, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Now the matters are returned to the Board. Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim on appeal. The Veteran contends that he has an acquired psychiatric disorder that is a result of his military service. Specifically, he reports having continued nightmares and problems after witnessing the injury of a fellow Marine during a helicopter repelling accident. See e.g., Veteran's October 2005 Stressor Statement (VA Form 27-0781); March 2006 Statement in Support of Claim; March 2009 Substantive Appeal, VA Form 9. Alternatively, the Veteran raised a new theory of entitlement in August 2020, asserting that the claimed psychiatric disorder is secondary to his service-connected tinnitus. See August 2020 Appellate Brief, at 2. The Veteran cites to medical treatise in support of his contention that tinnitus has a causative relationship with his psychiatric disorder, noting that tinnitus can provide an etiology for psychiatric conditions and also be a trigger for aggravating existing conditions. Id. In an April 2020 VA medical opinion, the examiner opined that it was less likely than not that Veteran had ever had any of the "Axis I" diagnoses noted in his treatment records. The examiner explained that the cross sectional presentation of borderline personality can mimic that of a depressive disorder diagnosis, and the diagnosis of a personality disorder with borderline traits is only given when there is evidence that the pattern of behavior had an onset in early age and a long-standing course. Thus, the examiner found the Veteran endorsed symptoms and a pattern of behavior since an early age that were not sufficient to warrant a separate diagnosis of a "true" depressive, anxiety or trauma and stressor related disorder", and that the Veteran's presentation seemed to be better accounted for by the diagnosis of Other Specified Personality Disorder with borderline and antisocial traits. Notably, the evidentiary record fails to show evidence of treatment or diagnosis for a psychiatric disorder prior to military service, and the Veteran testified that no such problems existed; an exhaustive search was performed for his service treatment records, including pursuant to the January 2020 remand, and they were unavailable. See February 25, 2020 National Personnel Records Center response. Thus, the Board finds the examiner's basis for the requisite pattern of behavior during adolescence to establish a diagnosis of personality disorder is unclear. Moreover, the April 2020 VA examiner indicated that distress associated with military memories have been superimposed upon the Veteran's personality disorder but found no evidence of any superimposed disease or injury that might have caused an additional disability after being superimposed over his personality disorder. Therefore, the Board finds the examiner did not provide an adequate rationale for the opinion that the Veteran never had a disability other than the diagnosed personality disorder and that the Veteran's noted military distress did not worsen the disorder beyond the progression of the disability while in service. Regarding the Veteran's secondary service connection claim, review of the record reveals that no examiner has provided an opinion on etiology that included whether the Veteran's acquired psychiatric disorder was incurred or aggravated by the service connected tinnitus. As such, the Board finds that remand is warranted to obtain to obtain a new VA examination to evaluate the Veteran for entitlement to service connection for an acquired psychiatric disorder on a secondary basis. The matters are REMANDED for the following action: 1. The AOJ should obtain and associate with the claims file all outstanding VA treatment records. 2. Then, schedule the Veteran for an examination to assess the nature and severity of any acquired psychiatric disorder, present since September 2005. The examiner must review the entire claims file and a copy of this REMAND order before rendering the opinion and include a notation that a record review was performed. The examiner is asked to provide an opinion on whether any diagnosed psychiatric disorder since September 2005 had its onset during, or is otherwise related to, the Veteran's active service from March 1970 through March 1972. The examiner should consider and address the Veteran's assertion that he had nightmares and problems after witnessing a helicopter repelling accident. See e.g., Veteran's October 2005 Stressor Statement (VA Form 27-0781); March 2006 Statement in Support of Claim. If the examiner finds clear and unmistakable evidence that a psychiatric disorder pre-existed active duty, then the examiner must provide a complete rationale for the finding. Then, the examiner must opine on whether the disorder was aggravated (worsened beyond the natural progression of the disability) during the Veteran's period of active service from March 1970 through March 1972. Also, the examiner should reconcile the conflicting diagnoses of record, to include the determination that the Veteran has never had a mental health disorder other than a personality disorder, providing a complete rationale for the opinion expressed. The examiner should opine on whether any diagnosed psychiatric disorder, is at least as likely as not (50 percent or greater probability): (1) proximately due to the service connected tinnitus, and (2) aggravated (worsened beyond its natural progression) by the service-connected tinnitus. The examiner should consider and address the medical studies cited by the Veteran in support of his contention that tinnitus can cause and aggravate psychiatric disorders. See August 2020 Appellate Brief, at 2. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If any such reports are rejected, the examiner must provide reasons. The examiner should provide a complete rationale for any opinion provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.