Citation Nr: 21075515 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-45 091 DATE: December 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety and depression, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1971 to January 1973. He also served on active duty for training (ACDUTRA) in the United States Army from October 1978 to January 1979. This case comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision. The Veteran requested a Board hearing on his August 2017 VA Form 9. He subsequently failed to report for a September 2021 Board hearing and his request for a Board hearing is accordingly considered withdrawn. See 38 C.F.R. § 20.704(d) ("If an appellant...fails to appear for a scheduled hearing...the case will be processed as though the request for a hearing had been withdrawn"). On a September 2014 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), the Veteran claimed a disability of "PTSD with Anxiety and Depression." The July 2015 rating decision on appeal denied entitlement to service connection for separately characterized issues of PTSD, anxiety and depression. The relevant August 2017 statement of the case (SOC) characterized the issue on appeal as "[s]ervice connection for posttraumatic stress disorder, anxiety, depression." The Board has broadly characterized the claim on appeal, as noted above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection An Acquired Psychiatric Disorder Upon review, the Board finds that remand is warranted for further development. Initially, remand is warranted to obtain outstanding VA treatment records. VA's duty to assist includes obtaining sufficiently identified VA treatment records. See 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(3); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) ("We hold that [38 C.F.R] § 3.159(c)(3) extends the VA's duty to assist to obtaining sufficiently identified VA medical records...regardless of their relevance"). In this case, the most recent VA treatment records of record are from August 2014. On the Veteran's August 2017 VA Form 9, he stated that "[t]he VA did not review my...VA medical records these records clearly denote my medical issues while serving in the United States Army" and "I continue to have medical problems with the above [a reference to PTSD, anxiety and depression noted elsewhere on the form by the Veteran]. I continue to seek treatment for injuries incurred during my military service." Based on the Veteran's reference to VA not reviewing his VA medical records and his statement (dated in August 2017) that "I continue to seek treatment," such indicated that there are outstanding relevant VA treatment records dated subsequent to the most recent records of record from August 2014. As such, the Board finds that the August 2017 VA Form 9 sufficiently identified outstanding VA treatment records and that, therefore, remand is warranted to obtain all outstanding VA treatment records from August 2014. Next, the Board finds that a VA examination is warranted, which was not previously provided as part of this claim. VA's duty to assist includes providing the Veteran a VA examination, if certain requirements are met. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), it was stated that: In disability compensation claims, [VA] must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service...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) insufficient competent medical evidence on file for [VA] to make a decision on the claim. In this case, there is mixed evidence as to whether the Veteran has PTSD. In this regard, a June 2014 private medical record from Dr. M.H stated that the Veteran "has been under care in this practice since 2008, and has been exclusively under my care since [March 2014] for treatment [PTSD]." Also, July 2013 and June 2014 VA primary care records from Dr. J.L. included impressions of PTSD. Other VA treatment records, however, included an August 2013 mental health record from Dr. D.K. and a March 2014 mental health record from Dr. R.B. that both noted a diagnosis of "[rule out] PTSD." In addition, other VA treatment records noted diagnoses of different acquired psychiatric disorders, to include a November 2013 mental health record from Dr. D.K. noting a diagnosis of depression and a March 2014 mental health record from Dr. S.H. noting a diagnosis of anxiety disorder. Overall, while there is mixed evidence as to whether the Veteran has PTSD, there was competent evidence of a current acquired psychiatric disorder. As to an in-service event, the evidence is not entirely clear as to what specific event(s) may be associated with the any acquired psychiatric disorder. In this regard, the Veteran has not articulated a specific stressor in any of his submission. Also, the June 2014 private medical record from Dr. M.H., referencing a diagnosis of PTSD, did not note what stressor such a diagnosis was based on. VA treatment records included some references to the Veteran working as a medic or with ambulance units. In this regard, the July 2013 VA treatment record from Dr. J.L., which including an impression of PTSD, stated "was a comp[]any unit commander (ambulance corps). [W]hen I left service, it followed me. [A]s I got older the [symptoms] got worse." A March 2014 mental health record from Dr. S.H., which noted a diagnosis of anxiety disorder, stated "when stationed at Travis [Air Force Base], he was the commander in charge of the ambulance service and while doing that job, he saw many traumatically injured people and that was stressful." A March 2014 mental health record from Dr. R.B., which noted a diagnosis of "[rule out] PTSD," noted that the Veteran "had extensive military trauma as a medic and a leader of medics." Also, a July 2013 mental health record from Dr. D.K. stated "Army medic, commander in Germany supervising other medics, exposed to many months of combat injuries and war stories." The Board observes that the references to medical and ambulance work appear to be referencing the Veteran's service in the United States Army Reserve. In this regard, the DD 214 for the Veteran's October 1978 to January 1979 ACDUTRA service noted a primarily specialty title of "Field Medical Assistant." Service personnel records from the Veteran's Reserve service included a Record of Assignments form, which noted the Veteran as being in the Medical Services (abbreviated "MS") while in the Reserve. This form also noted the Veteran as being a company commander starting in 1984 while in the Reserve. In addition, Reserve Performance Evaluation reports included forms (DA Form 67-8) covering periods form 1981-1983 referencing the Veteran as a platoon leader of a "medical company (ambulance)." Overall, the evidence indicated that the Veteran's Reserve service included work related to medical and ambulance units. As such, it is not currently clear how any events related to his medical or ambulance work would be relevant to his service connection claim on appeal, which generally requires an in-service event during active service. On the other hand, there are some references in the VA treatment records to the Veteran's service in Germany and as a MP (military policeman). In this regard, a July 2013 mental health record from Dr. D.K. stated "[h]as nightmares...sometimes specific images from his time as MP." This note also stated "[s]tationed Germany in '71[.] Was dealing with soldiers who were returning from Vietnam, had friend who was a soldier commit suicide. Worked Jul-Nov without a day off" (it was also noted "[d]oes not have one or two specific events that he returns to"). A March 2014 mental health record from Dr. S.H., which noted a diagnosis of anxiety disorder, stated "he gives a tangential and vague account of having some traumatic experiences when he was stationed in Germany and was working as an MP and had to protect other people and had to deal with soldiers returning from Vietnam but didn't give any more specifics about traumatic events while there." This note also stated that "[h]e later said that his entire military service was traumatic." The Veteran's DD 214 for the Veteran's period of service from January 1971 to January 1973 noted a specialty title of Military Police and service personnel records noted that he served in Germany from June 1971 to January 1973. In review, in light of the competent evidence of a current acquired psychiatric disorder, the references in VA mental health treatment records to the Veteran's service in Germany and as a MP and the official records documenting that the Veteran served as a MP and in Germany, the Board finds that the requirements for a VA examination have been met in this case. Specifically, the evidence is sufficient to meet the "low threshold" to indicate that the Veteran's claimed acquired psychiatric disorder "may be associated" with his active service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As such, on remand, the Veteran must be afforded a VA examination and an opinion as to direct service connection must be obtained, as outlined further in the remand directives below. Finally, as noted, of record is a June 2014 private medical record from Dr. M.H. that referenced the Veteran being treated for PTSD. No additional records are of record from this provider. As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records from Dr. M.H., or complete a release for such providers; if any releases are returned, VA must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) ("If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records"). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from August 2014. 2. Contact the Veteran and request that he either provides any outstanding relevant private treatment records, to include any records from Dr. M.H., or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. 3. Afford the Veteran a VA examination with respect to his acquired psychiatric disorder claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired psychiatric disorder had its onset during service or is otherwise related to service. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.