Citation Nr: 21005672 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-24 163 DATE: February 2, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1982 to March 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Following an April 2019 order of the US Court of Appeals for Veterans Claims granting a joint motion for remand, the Board remanded the matter in August 2019 for records requests regarding the details of an alleged stressor. After review of the record, the Board finds that further remand unfortunately is required. As an initial matter, the August 2019 Board decision directed the RO to request that certain records custodians, to include the Marine Personnel Management Support Branch, review unit records for whether the alleged assailant of a sexual assault was a member of the Veteran’s unit and whether the alleged assailant was ever investigated for assault or a similar complaint. The record reflects that while appropriate requests were made to the other records custodians specified in the August 2019 Board decision, only a single formal letter was sent to the Marine Personnel Management Support Branch, and after no response was received to this first letter the RO issued a letter that further requests would be futile. As the Marine Personnel Management Support Branch is within a federal department, VA is required to make “as many requests as are necessary” and end its efforts only if it concludes the records sought do not exist or further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Here, the Board does not find the RO’s single request letter, without any response received (even a negative response), satisfactorily discharged its duty to assist the Veteran in obtaining evidence from the Marine Personnel Management Support Branch. Id. Additionally, the Board finds that remand is required to provide a new VA medical examination and etiology opinion. In the Veteran’s original filing for service connection for PTSD, he identified his stressors as serving in the US Marine Corps in the West Pacific at the time a Marine Corps barracks was bombed in Beirut, Lebanon, which put him and his unit on a “ready contingency” to deploy to Beirut at any time. The Veteran also felt affected by the general “constant talk of war, killing, training, deployment” that had begun when he entered boot camp, detailing in his August 2013 substantive appeal that his “traumatic experiences, fears, [and] anxieties started 2 weeks [into] boot camp and continued.” At an August 2014 Board hearing he described first experiencing nightmares in the “first three or four days . . . in boot camp,” having never had nightmares in his life before that. Though he could not “quite put [his] finger on it,” he mentioned the talk of war, being trained to be a “killing machine,” and witnessing other servicemembers get hurt as “just ca[tching] up to [his] psyche.” In 2015, the Veteran submitted a statement describing a series of sexual assaults perpetrated against him during service. He also maintained his original position that he had been having nightmares since the first week of boot camp and that being deployed while the Beirut crisis happened was “an extremely stressful period.” In September 2018, a servicemember who served with the Veteran wrote a letter corroborating the Veteran’s statements regarding details of the assailant. A VA examination was provided in June 2018. The clinician diagnosed the Veteran with chronic PTSD, bipolar disorder, schizotypal personality disorder, and two substance abuse disorders in remission. After reviewing the Veteran’s medical history, the clinician noted the Veteran had reported episodes of sexual abuse during his childhood and first experienced symptoms of labile mood and racing thoughts at that time, as well as reported a “lifelong history of racing thoughts, difficulty sleeping, [and] impulsity [sic].” The childhood abuse, as well as the military sexual trauma, were each found adequate to support the Veteran’s current diagnosis of PTSD. Ultimately, however, the examiner found that the record did not show “markers in STRs or year after” to corroborate the MST, and therefore found the PTSD less likely than not due to the MST. Instead, he opined that the Veteran’s PTSD was “more likely than not attributed to complex trauma history” including the childhood sexual abuse. The June 2018 examiner was not asked, however, whether any acquired psychiatric disabilities other than PTSD, to include the diagnosed bipolar disorder, was related to the Veteran’s service. The Board’s August 2019 decision restyled the Veteran’s service-connection claim as a claim for any acquired psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the facts in this case, where bipolar disorder has been diagnosed and may be related to the stressors alleged by the Veteran, an opinion should have been provided regarding this condition. Thus, on remand the Board will direct for an examination and opinion regarding any diagnosed acquired psychiatric disorder, to include PTSD and bipolar disorder. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). Finally, the June 2018 examiner attributed the Veteran’s PTSD to a “complex trauma history” that included incidences occurring before service, indicating that the Veteran’s condition may have preexisted service. The Veteran was not noted to have any preexisting conditions on his November 1981 induction medical examination, and therefore on remand the Board will direct for the appropriate inquiry regarding whether the Veteran may have had a preexisting condition and, if so, whether it was permanently aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Accordingly, the matter is REMANDED for the following action: 1. Associate with the Veteran’s claims file any VA treatment records not already of record. 2. Make appropriate requests to the Marine Personnel Management Support Branch (2008 Elliot Road, Quantico VA 22134) to obtain any records regarding both of the following: (a) Whether the alleged assailant (named in an October 8, 2015 correspondence) was at any time a member of the Veteran’s squad (1st Marine Division, 5th Marine Regiment, 1st Battalion, Alpha Company, 3rd Platoon, 1st Squad). (b) Whether the alleged assailant was ever investigated for any assault or similar complaint on the Veteran or any other servicemember. If no response is received, ensure that another request is sent, documenting all requests and responses in the claims file. If unable to obtain the records, or if further attempts are found to be futile, send proper notification to the Veteran and his representative. 3. Schedule the Veteran for an examination regarding the nature and etiology of any acquired psychiatric disorder, to include PTSD and bipolar disorder. If possible, schedule the examination with the clinician who conducted the June 2018 examination. For any acquired psychiatric disorder diagnosed, to include PTSD and bipolar disorder, the examiner must answer all of the following: (a)(i) Did the Veteran’s PTSD, bipolar disorder, or any other diagnosed acquired psychiatric disorder clearly and unmistakably (undebatable) exist before the Veteran’s service? Consider and discuss the finding of the June 2018 examiner that the Veteran had “first symptoms of labile mood and racing thoughts in childhood,” substance “dependence since adolescence,” reported a “lifelong history of racing thoughts, difficulty sleeping, impulsity, and difficulty holding jobs.” Also consider the June 2018 examiner’s attribution of the Veteran’s PTSD to a “complex trauma history [including] reported childhood sexual abuse.” (a)(ii) If the Veteran’s PTSD, bipolar disorder, or any other diagnosed acquired psychiatric disorder is found to have clearly and unmistakably existed before service, was the condition clearly and unmistakably NOT permanently aggravated (worsened beyond the normal course of the disease) during the Veteran’s service? Consider and discuss the Veteran’s statement that he first began experiencing nightmares three or four days into boot camp; that his deployment to Okinawa while the Beirut crisis was “extremely stressful” with “high emotions, fights, confusion” and “lots of drinking”; and the sexual assaults against him by a fellow servicemember. (b) If the Veteran’s PTSD did not clearly and unmistakably exist before service, was the PTSD at least as likely as not incurred in service or otherwise caused by service, to include as due to (i) the sexual assaults against him; and/or (ii) stress beginning in boot camp, to include talk of war, being trained to kill, and witnessing other servicemembers get injured; and/or (iii) the stress of “ready reserve” while on deployment during the time of attacks and bombings on Marines in Beirut, Lebanon. Also consider an August 2014 letter from Dr LS, the Veteran’s treating mental health doctor, who opined that the Veteran’s PTSD was “brought on by his time in service.” (c) If the Veteran’s bipolar disorder, or any other diagnosed acquired psychiatric disorder, did not clearly and unmistakably exist before service, was the bipolar disorder, or any other diagnosed acquired psychiatric disorder, at least as likely as not incurred in service or otherwise caused by service, to include as due to (i) the sexual assaults against him; and/or (ii) stress beginning in boot camp, to include talk of war, being trained to kill, and witnessing other servicemembers get injured; and/or (iii) the stress of “ready reserve” while on deployment during the time of attacks and bombings on Marines in Beirut, Lebanon. Also consider an August 2014 letter from Dr LS, his treating mental health doctor, who opined that the Veteran’s mood disorder was “brought on by his time in service.” (Continued on the next page)   4. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.