Citation Nr: 21006338 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-05 675 DATE: February 3, 2021 REMANDED Entitlement to an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1979 to December 1979 and from January 1980 to August 1984. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in January 2020, when it was remanded develop for outstanding VA treatment records and Social Security Administration (SSA) records. Another remanded is warranted to afford the Veteran an examination to determine the etiology of his acquired psychiatric disorder. In January 2020, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. 1. Entitlement to an acquired psychiatric disorder, to include PTSD and MDD is remanded. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159(c)(4) is a "low threshold" standard. The Veteran claims entitlement to service connection for a psychiatric disorder, including PTSD and MDD. It is not in dispute that the Veteran has medical diagnoses of PTSD and MDD. See, e.g., August 2013 Correspondence from VA Staff Psychiatrist verifying that the Veteran was under treatment for MDD and PTSD in the outpatient clinic of the Bedford VA Medical Center. As such, the first prong of McLendon is satisfied. With regard to the second prong of McLendon, the Board notes that the Veteran has testified regarding a series of events during his active duty service that he believes has caused his mental health difficulties. While NPRC was unable to locate the Veteran’s personnel and service treatment records, the Board notes that there is nothing in the law that requires direct verification of an in-service injury, disease, or event, for service connection claims of mental health disorders other than PTSD. Thus, in situations where the medical evidence suggests that the Veteran's current symptoms are attributable to MDD or another mental health disorder (e.g., depression, generalized anxiety disorder, adjustment disorder, etc.), other than PTSD, the criteria for establishing entitlement to service connection for these other mental disorders should follow the general rules of 38 C.F.R. § 3.303, rather than PTSD under section 3.304(f). The general rule in section 3.303(a) for establishing service connection only requires that the evidence be at least in equipoise that the in-service injury, disease, or event occurred. The Courts have held that a Veteran's credible lay testimony can establish an in-service incurrence of an injury or disease. See e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); McLendon v. Nicholson, 20 Vet. App. 79, 83-84 (2006). The Board finds that the Veteran’s description of events during service reasonably satisfies the second prong of McLendon. With regard to the third prong of McLendon, numerous VA and SSA treatment records indicate a connection between the Veteran’s military service and his current psychiatric disorders. An April 1998 VA treatment record shows that the Veteran sought treatment for childhood, military, and relationship issues. An April 2014 SSA treatment note states that the Veteran’s trauma history largely revolves around feeling personally discriminated against plus having observed military male suicide after having been bullied, a May 2015 treatment record shows initial psychiatry PTSD arising from childhood exacerbated by witnessing suicide of fellow soldier, and a July 2015 treatment record notes the Veteran also has reactive depression dating back to childhood. The Board finds that the Veteran's treatment records satisfy the third prong of McLendon. The Board also finds that the evidence of record does not contain sufficient medical evidence for the Board to make a decision on the claim at this time. The Board finds that a remand for a VA medical opinion is warranted in this case. The claim of entitlement to service connection for a psychiatric disorder is accordingly remanded for this purpose. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his disability on appeal.  Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 above is complete, please obtain an appropriate medical opinion to determine the nature and etiology of his claimed psychiatric disorder(s). A medical examination is requested only if deemed necessary by the opinion provider. The Veteran's file should be made available for review by the clinician. The VA clinician must opine as to the following: (a.) Did a psychiatric disorder clearly and unmistakably (obvious, manifest, undebatable) exist prior to his entrance to service? If so, please identify the preexisting psychiatric disorder by diagnosis. Please explain the reasoning supporting the opinion. (b.) If the answer to (a) is yes, was the psychiatric disorder clearly and unmistakably (obvious, manifest, undebatable) not aggravated (i.e., not worsened beyond the natural progression) by service? The clinician is requested to consider and address: • An April 7, 1998 VA treatment record that shows that the Veteran sought treatment for childhood, military, and relationship issues. • An April 16, 2014 SSA treatment note that states that the Veteran’s trauma history largely revolves around feeling personally discriminated against plus having observed military male suicide after having been bullied. • A May 2015 SSA treatment record showing initial psychiatry PTSD arising from childhood exacerbated by witnessing suicide of fellow soldier. • A January 15, 2015 SSA treatment record documenting the Veteran’s trauma history. • A March 10, 2015 SSA treatment note showing diagnosis of MDD and PTSD (childhood and military). • A July 1, 2015 treatment record noting the Veteran has reactive depression dating back to childhood. IF the clinician determines that any psychiatric disorder (1) did not clearly and unmistakably preexist service, or (2) was clearly and unmistakably not aggravated by service, the clinician should provide an opinion that responds to the following: (c.) Whether it is at least as likely as not (a 50% or greater likelihood) that any psychiatric disorder (including MDD) diagnosed since 2013 began during or is otherwise related to his military service? The clinician is requested to consider and address: • An April 7, 1998 VA treatment record that shows that the Veteran sought treatment for childhood, military, and relationship issues. • An April 16, 2014 SSA treatment note that states that the Veteran’s trauma history largely revolves around feeling personally discriminated against plus having observed military male suicide after having been bullied. • A March 10, 2015 SSA treatment note showing diagnosis of MDD and PTSD (childhood and military). Any opinion expressed by the VA clinician should be accompanied by a complete rationale. If the VA clinician is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.