Citation Nr: 21007404 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-18 461 DATE: February 9, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1976 to July 1983. This matter is on appeal from a March 2016 rating decision issued by a Department of Veterans (VA) Regional Office (RO). This matter was previously before the Board, which denied it in a February 2019 decision. Subsequently, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court remanded the matter back to the Board, upon finding errors in statement of reasons and bases of the Board’s February 2019 decision. The matter has now returned to the Board for adjudication. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran asserts that his PTSD is the result of his service, specifically when he witnessed a serviceman holding a gun to a woman's head during a domestic dispute call in 1982. A military performance assessment dated in November 1982 showed that while serving as a base patrolman, it was noted that the Veteran's actions at several domestic disturbances, without a doubt, were directly responsible for the smooth resolution of these extremely volatile situations. An October 2019 opinion from J.W., a VA clinical psychologist, indicates that the Veteran has a diagnosis of PTSD according to the DSM-V. A March 2020 opinion from Dr. A.G. opined that it was highly likely that the Veteran's diagnosed PTSD and generalized anxiety disorder was a direct result of the reported event in 1982. No VA etiology opinion has yet been obtained. Therefore, on remand such an etiology opinion should be obtained. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above, the Veteran submitted two opinions in support of his appeal, namely an October 2019 opinion from J.W. and a March 2020 opinion from Dr. A.G. The Veteran’s attorney explicitly declined to waive initial Agency of Original Jurisdiction (AOJ) consideration of this evidence in a November 2020 submission. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the Agency of Original Jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. §19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be furnished to the Veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. 38 C.F.R. § 20.1304(c). Therefore, the Board has no choice but to remand this claim so that the AOJ can consider the newly associated evidence in the first instance. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination determine the etiology of the Veteran’s PTSD condition. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The examiner should respond to the following questions: (A) Identify all current acquired psychiatric disorder(s) that have been present at any time since December 2015. If no acquired psychiatric disorder is diagnosed, the examiner should reconcile that finding with the October 2019 opinion from J.W. and a March 2020 opinion from Dr. A.G. (B) If PTSD is diagnosed, then the examiner or other appropriate clinician must explain how the diagnostic criteria are met, to include identifying the specific stressor(s) underlying the diagnosis and commenting upon the link between the current symptomatology and the Veteran's stressor(s). (C) For each currently diagnosed acquired psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder had its onset or is related to active service? The examiner should specifically address the Veteran’s contentions that his current PTSD condition is the result of either witnessing a traumatic domestic violence situation while in-service or the result of accusations of sexual misconduct leveled against the Veteran. The examiner shall consider all the evidence, to include the Veteran’s statements. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.