Citation Nr: 21005727 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-00 620 DATE: February 2, 2021 REMANDED Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1981 to February 1985, and from March 1986 to September 1993, with additional Reserve service. This matter was initially before the Board on appeal from a May 2011 rating decision, which in pertinent part, denied service connection for PTSD, bipolar disorder, and depression. A November 2017 Board decision denied service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a September 2018 Joint Motion for Partial Remand (JMPR) by the parties. An October 2018 CAVC Order vacated and remanded the matter for compliance with the JMPR instructions. In March 2019, the Board remanded the claim for additional development. The Veteran was previously represented by an attorney. In November 2019, he revoked her power of attorney. In December 2019, he designated American Legion as his representative. In September 2020, American Legion submitted a memorandum to the Board entitled “inability to represent” and asked that they be removed from all databases as the Veteran’s representative. In December 2020, the Board sent the Veteran a letter to afford him opportunity to appoint a new representative. He has not done so within the time provided for response. Accordingly, as explained in the December 2020 letter, the Board is proceeding with the understanding that he is pursuing this appeal pro se. Entitlement to service connection for a psychiatric disability, to include PTSD and bipolar disorder The Board is aware that this matter was remanded before and regrets the delay inherent with another remand. However, another remand is necessary to ensure substantial compliance with previous remand instructions and for further development of the medical evidence, as discussed below. The September 2018 JMPR noted that “VA has received [the Veteran’s] service treatment records” (STRs), but that records of “overseas medical or mental health treatment for substance abuse or mental health counseling are not of record,” and should be sought. In compliance with the March 2019 Board remand, the Agency of Original Jurisdiction (AOJ) sought any outstanding STRs pertaining to the Veteran’s reports of mental health counseling and therapy for stress and alcohol abuse while stationed in Germany, Turkey, and Panama. The March 2019 remand directed the AOJ that if such STRs cannot be located because they are irretrievably lost or destroyed (or did not exist), to so certify (describing the scope of the search) and to notify the Veteran. The record contains February and July 2020 VA Form 21-3101’s (Request for Information) that report all available records have been uploaded to the Veteran’s file (from NPRC and the Reserves). However, the Veteran was not notified of any response to the records request. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also 38 § C.F.R. 3.159(e). [As noted above, he has apparently been without assistance by a representative since some point between December 2019 and September 2020.] Remand is also necessary because pertinent records of private medical treatment remain outstanding. In a July 2019 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran reported that he has been under the care of Dr. M.I. for “bi-polar disorder” and “back pain” from 2018 to 2019. Records of treatment from Dr. M.I. have not been sought or associated with the record. Complete, outstanding records of private mental health treatment must be sought, as they are material evidence in this matter. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Finally, remand is required to address a newly raised theory of entitlement. In a September 2020 statement, the Veteran contends that mercury dental fillings he received in service “caused me brain damage and memory loss.” [His dental STRs show he received several amalgam fillings in service.] He submitted an EPA article regarding the health effects of exposures to elemental (metallic) mercury, including emotional changes and poor performance on mental function tests. [Such treatise evidence gains probative value when applied by a medical professional to the specifics of a particular case.] As this treatise evidence was submitted after the July 2020 VA (fee basis) behavioral health examination (and opinion), it was not considered by the examiner. Accordingly, remand for an addendum medical opinion regarding the likely etiology of the Veteran’s diagnosed psychiatric disability is necessary. The matter is REMANDED for the following action: 1. Ensure that the Veteran is notified of the unavailability of his STRs pertaining to reported mental health treatment while stationed in Germany (February 1983 to February 1985), Turkey (January 1988 to August 1988), and Panama (February 1991 to February 1994), and afford him opportunity to supplement the record with additional evidence to support his claim. 2. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his psychiatric disability. 3. Also ask the Veteran to provide identifying information (and authorizations for VA to obtain records of) regarding all private evaluations and treatment he has received for his psychiatric disability (records of which are not already in the record), including specifically records from Dr. M.I. Secure all such records for association with the claims file. 4. When the development requested above is completed, return the record to the psychologist who provided the July 2020 (fee basis) behavioral health medical opinion for an addendum medical opinion. [If that provider is unavailable or cannot provide the opinion sought, forward the record to another appropriate psychologist or psychiatrist for the opinion (and if in such circumstance further examination of the Veteran is deemed necessary, such should be arranged).] The entire record (including this remand, the July 2020 behavioral health examination report/opinion, the Veteran’s September 2020 statement with citation to EPA article regarding effects of exposure to elemental (metallic) mercury, and any newly associated treatment records) must be reviewed. The provider should respond to the following: Regarding each acquired psychiatric disability entity diagnosed (including specifically unspecified bipolar and related disorder (diagnosed on July 2020 examination)), opine whether it is at least as likely as not (a 50% or greater probability) etiologically related to the Veteran’s service/events therein? The rationale for the opinion must acknowledge and discuss the Veteran’s belief that dental amalgam fillings he received in service caused “brain damage and memory loss,” and the EPA internet medical article he submitted which discusses symptoms of exposure to elemental (metallic) mercury, including emotional changes and poor performance on mental function tests. All opinions must include rationale that cites to supporting factual data and medical principles (if possible, with cites to medical text or treatise), as deemed appropriate. 5. Before returning the case to the Board, ensure all directed development is completed (to forestall yet under remand under Stegall). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.