Citation Nr: A21020451 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200513-84141 DATE: December 22, 2021 REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety, is remanded. REASONS FOR REMAND The Veteran had active service from September 1980 to September 1984. The rating decision on appeal was issued in May 2020. The Agency of Original Jurisdiction (AOJ) concluded in that decision that new and relevant evidence had not been received so as to warrant readjudication of the claim for PTSD, to include depression and anxiety. In the May 2020 VA Form 10182, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his attorney at the August 2021 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). While the Board notes that the May 2020 rating decision stated that no new and relevant evidence had been received, the AOJ nevertheless adjudicated the claim on the merits, specifically considering and weighing the evidence. Accordingly, the Board will accept that the AOJ in effect found that new and relevant evidence had been added to the record, and will not readjudicate that threshold matter. While the specific claim appealed and certified to the Board was entitlement to service connection for PTSD, the Board has expanded the scope of the appeal to include consideration as to whether service connection may be awarded for any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board finds that remand is warranted to correct a duty to assist error that occurred prior to the May 2020 decision on appeal. Specifically, that decision relied on the findings of a May 2020 VA medical opinion, in which a VA clinician opined that the Veteran's depressive disorder was less likely than not incurred or caused by the Veteran's near-drowning incident in service. The rationale was that the Veteran's service treatment records were silent for any complaints of or treatment for any mental health issues, and that the Veteran only started seeking mental health counseling in 2016 for depression and anger related to interpersonal problems and physical limitations due to chronic pain and obesity. Initially, the May 2020 opinion is in part predicated on an inaccurate factual premisethat the Veteran did not seek mental health treatment until 2016as VA records reflect an October 2011 treatment note indicating a past history of PTSD and a behavioral health assessment in July 2015 after the Veteran was referred due to depression. Moreover, the examiner did not adequately explain why, from a medical standpoint, the Veteran's incident in service did not cause his current psychiatric issues. The Board adds that the examiner did not consider other psychiatric diagnoses contained in the Veteran's medical history, including anxiety. Given the above, the AOJ should have afforded the Veteran another examination prior to denying the claim. The Board notes in passing that it has considered the recently submitted nexus statement from Dr. D.S., who opined that the Veteran's psychiatric conditions were related to his near-drowning in service in 1983. However, Dr. D.S. did not provide an adequate medical rationale in support of this conclusion. As such, the opinion, in and of itself, is not sufficient to support an award of benefits at this time. (Continued on Next Page) The matter is REMANDED for the following action: Schedule the Veteran for a VA examination addressing the nature and etiology of the Veteran's claimed psychiatric disorder(s). The selected examiner must take a history from the Veteran as to the onset and progression of his psychiatric conditions. Then, the examiner should address the following: Clarify the Veteran's acquired psychiatric disorders, to include PTSD. The record shows prior diagnoses of anxiety and major depressive disorder, diagnosed by VA providers. If current diagnoses conflict with prior diagnoses, the examiner must reconcile such findings. If PTSD is diagnosed, the stressor(s) to support such diagnosis must be identified. With regard to any identified acquired psychiatric disorder, is it at least as likely as not (approximately 50 percent probability) that such had onset in, or is otherwise related to the Veteran's active service? All opinions should be supported by a medical explanation or rationale. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.