Citation Nr: 21077204 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-42 929 DATE: December 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a rating in excess of 40 percent for left leg deep venous thrombosis (DVT), from May 24, 2017, is remanded. Entitlement to a rating in excess of 10 percent for left leg DVT, prior to May 24, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to February 2005. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In June 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In an August 2021 Board letter, the Veteran was notified that his previous representative, the Military Order of the Purple Heart, was no longer accredited to represent claimants in claims before VA. The letter informed the Veteran that he had 30 days to seek a new representative and that the Board would resume review of the appeal unless he informed the Board otherwise; the letter additionally informed him how to obtain accredited representation. The Veteran has not indicated that he wishes to obtain new representation in this matter. As such, the Board will consider the Veteran to be representing himself pro se. Lastly, in remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran, and his representative, contends that his acquired psychiatric disorder had its onset during service. In this regard, the Veteran testified that symptoms of his acquired psychiatric disorder began during military service, particularly, the year prior to service separation. See Hearing Transcript at 9 (June 2021); see also VA Form 21-0781a (October 2013). It was further argued that the Veteran had PSTD due to fear of hostile military forcesnoting that the Veteran served in Kuwait and he was on "general quarters" fearing attack by Iranians. See Hearing Transcript (June 2021). For reasons explained below, the Board finds that remand is necessary. First, VA medical examination report, dated in October 2013, reflects that the Veteran did not have a diagnosis of PTSD pursuant to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). In a corresponding medical opinion, the examiner found that the Veteran met the criteria for adjustment disorder, with mixed emotional features, but rationalized that his symptoms were related to his inability to adapt to a civilian lifestyle. The Board finds the VA examination, and its corresponding medical opinion, inadequate for adjudicative purposes. VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). 38 C.F.R. § 4.125. This applies to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014 (i.e., have not yet been certified to the Board). See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In this instance, this appeal was certified to the Board after August 4, 2014, and the DSM-5 applies to all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014. 38 C.F.R. § 4.125. The VA examination, and its corresponding medical opinion, were, however, formulated pursuant to the DSM-IV. Thus, given the above, the Board may not rely upon the VA examination report, and its corresponding medical opinion, in its present form and, therefore, finds the evidence is inadequate for adjudicative purposes as the Board cannot rely on evidence VA has determined to be undependable. Golden v. Shulkin, 29 Vet. App. 221 (2018) (holding the Board, as an adjudicator, cannot rely on evidence that expert consensus as adopted by VA has determined to be unreliable). Accordingly, remand is necessary for an adequate examination and medical opinion. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Next, the Board observes that the record indicates that there may be outstanding relevant VA treatment records. In this regard, at the Board hearing, the Veteran testified to receiving only VA treatment for his acquired psychiatric disorder. See Hearing Transcript at 18 (June 2021). VA treatment records were last obtained by VA in August 2017, over four years ago, and the record shows that the Veteran has been consistently receiving VA treatment for his acquired psychiatric disorder. The Board notes that the Veteran submitted copies of VA treatment records, dated from 2020 to 2021; however, there is no indication that the Veteran submitted all (complete) outstanding treatment records from VA. Indeed, the record shows that treatment records dated from 2018 through 2019 have not been associated to the claims file. Thus, as any complaint or treatment with VA is relevant to determining the Veteran's claim for service connection for an acquired psychiatric disorder, remand is necessary to associate any outstanding VA treatment records with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance) Thus, given the above, the Board finds that remand is necessary for further development of the claim. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Accordingly, any further adjudication of the claim at this juncture is unreasonable given the appearance of an inadequate and incomplete record. Brambley v. Principi, 17 Vet. App. 20 (2003). 2. Entitlement to a rating in excess of 40 percent for left leg DVT, from May 24, 2017, is remanded. 3. Entitlement to a rating in excess of 10 percent for left leg DVT, prior to May 24, 2017, is remanded. Issues 2-3. The Veteran, and his representative, contends that the Veteran his symptoms were the same at the time of assignment of a 40 percent as when he was rated at 10 percent. See Hearing Transcript at 14 (June 2011). It was argued that the Veteran had symptoms of persistent swelling (edema) and stasis pigmentation; also it was argued that he did not have "persistent ulceration" due to his use of Aspirin and prescribed compression socks. The Veteran's representative argued that the use of Aspirin and compression socks, which she reported is why there is no persistent ulceration, should be discounted when evaluating the severity of the disability pursuant to Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that where a diagnostic code under which a veteran is evaluated "does not specifically contemplate the effects of medication" in the rating criteria then the evaluator must "discount the ameliorative effects of medication" when assigning an evaluation). The Veteran's, and his representative's, arguments will be addressed in a decision at a later time as remand is necessary before the Board may consider the merits of this appeal. As noted above, the record reveals that there may be outstanding relevant VA treatment records and the Veteran has testified to solely receiving VA treatment for his left leg DVT. See Hearing Transcript at 17 (June 2021). Accordingly, as the record shows that VA treatment records were last obtained in August 2017, and there is no adequate indication that the Veteran has submitted a complete copy of his records, the Board finds that remand is necessary to associate any outstanding VA treatment record with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell, 2 Vet. App. at 613; Sullivan, 815 F.3d at 793. 4. Entitlement to a TDIU due to service-connected disability is remanded. In conjunction with the claim for increase for his service-connected left leg DVT, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in June 2021. Although this matter is part-and-parcel of the claim for increase, it has not been developed or adjudicated by the originating agency in the first instance. 38 C.F.R. § 3.155(d)(2) (as part of a claim, VA must adjudicate entitlement to any ancillary benefits for complications of the claimed condition). See also Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, remand is required to allow the AOJ to develop and adjudicate this matter. The matters are REMANDED for the following actions: 1. Attempt to corroborate the Veteran's in-service stressor(s). If more details are needed, contact the Veteran to request the information. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms for his acquired psychiatric disorder and left leg DVT, to include from any Vet Center. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain all VA treatment records dated from July 2017 to the Present. 4. After the Veteran's reported stressor(s) has been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any acquired psychiatric disorder. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: (a) Whether it is at least as likely as not that the Veteran has, or has had, PTSD at any time during the pendency of the claim or recent to the filing of the claim. Attempt to reconcile, or account for, medical evidence showing negative and positive findings for PTSD. Explain. (b) If the Veteran is diagnosed with PTSD, the clinician must explain how the diagnostic criteria are met and opine on whether it is at least as likely as not related to any conceded in-service stressor. Explain. (c) If any other acquired psychiatric disorders are diagnosed, the clinician must opine on whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Explain. 5. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.