Citation Nr: 21010780 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-38 397 DATE: February 25, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder, claimed as anxiety and depression, is remanded. REASONS FOR REMAND The Veteran served in the United States Army Reserve from June 1984 to February 2005 with active duty service from November 1984 to June 1985 and from February 2003 to June 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board remanded the case in April 2018 for additional development. The claim on appeal has been recharacterized more broadly as the Board recognizes that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009).   Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder is remanded. The Veteran contends that he has a mental disorder that began during active service and/or has been caused by his military service. The Veteran states that he was activated in 2003 for approximately 4 months. He asserts that as a result of the pressure of active duty service, being ready for combat, and leaving his wife and 2 children behind, he began feeling anxious and depressed. He also reported that his psychiatric symptoms continued and progressively worsened after his separation from active service. See VA Form 9 (September 2014). He has also claimed that he was subjected to discrimination. See VA mental disorders examination report (January 2020). Before deciding the appeal, the Board finds that remand is necessary in order to ensure compliance with its prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271(1998). The prior remand noted that the Veteran’s STRs from his second period of service (February 2003 to June 2003) were not of record. The Board instructed the RO to request the Veteran’s complete service treatment records (STRs) and complete service personnel records (SPRs), to include any records related to his periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). As an initial matter, the Board notes that in March 2013, the RO sent the Veteran a letter that his STRs for his second period of active duty service (February 2003 to June 2003) were unable to be located. Shortly thereafter, in April 2013, the record shows the Veteran submitted a statement to the Puerto Rico RO in which he indicated that his original STRs were enclosed and requested that his STRs be returned following adjudication of his claim. However, the Board notes that it is unclear from the record which STRs, if any, had been submitted by the Veteran. Further, the record shows that, in September 2013, the Veteran requested a copy of his STRs from the RO. Subsequently, in December 2013, the RO mailed the Veteran a copy of his STRs under the Privacy Act. In October 2019, the Records Management Center (RMC) provided a negative response, noting that the Veteran’s records were unable to be located. In February 2020, the RO notified the Veteran that two requests for his STRs had been made to the Puerto Rico State Adjutant General’s Office. The record shows the RO requested the Veteran’s STRS in October 2018 and in February 2020; however, there is no evidence of a negative response provided by the Puerto Rico State Adjutant General’s office to those requests. The Veteran’s electronic claims file shows that his SPRs were uploaded in June 2020 via the Defense Personnel Records Information Retrieval System (DPRIS). A VA Request for Information (3101) print shows a July 2020 response from the service department indicating that the Veteran’s STRs were previously uploaded into his electronic claims file. The Board notes that some STRs are of record, such as the Veteran’s periodic Reports of Medical Examination and Reports of Medical History, to include from his first period of active duty service but not from his second period of service. The Board notes that the STRs from the Veteran’s second period of service from February 2003 to June 2003 are particularly relevant as he has specifically claimed that his psychiatric symptoms began during that period of active service and continued thereafter. In addition, pursuant to the prior remand, the Veteran was afforded a VA mental disorders examination in January 2020. The examiner found the Veteran had a diagnosis of major depressive disorder with anxious distress. The examining psychiatrist determined that based on her interview of the Veteran as well as a review of his claims file, she could not render an etiological opinion regarding whether the Veteran’s current major depressive disorder was incurred in or related to his active service. She indicated that she was unable to render an opinion that was responsive to the Board’s remand directives without being provided the exact dates the Veteran served on ACDUTRA and INACDUTRA. The Board notes the record contains a Veterans Affairs/Department of Defense Identity Repository (VADIR) document showing the Veteran’s verified service in the U.S. Army Reserve between June 1984 and September 2005 and includes the Veteran’s verified periods of active duty and periods of U.S. Army Reserve. The record also reflects that the Veteran accumulated retirement points for active and inactive service every year between 1984 and 2005. The examiner also indicated that there was no treatment for a psychiatric disorder during active service, including his second period of active service in 2003. However, as discussed above, it is unclear whether the STRs are complete and the opinion cannot be rendered without the RO exhausting all efforts to obtain the Veteran’s STRs for his second period of active service. Given the above, in order to satisfy VA’s duty to assist the Veteran, the AOJ should ensure that all steps have been undertaken to obtain any outstanding STRs. In addition, the VA examiner should be provided with all of the Veteran’s verified periods of active service, to include ACDUTRA and INACDUTRA. The Board also notes the VA examiner failed to elicit any history from the Veteran regarding the onset of his psychiatric symptoms and no consideration was given to the Veteran’s lay statements. Moreover, the psychiatrist did not comment on the significance of the Veteran’s various psychiatric diagnoses contained in VA treatment records during the appeal period, including substance-induced mood disorder, alcohol dependence and major depressive disorder, recurrent, severe with psychotic features. For instance, a VA treatment record dated in August 2013 shows the Veteran had suicidal ideation with a plan and experienced increased depression and commanding hallucinations. The Board notes that during his examination, the Veteran indicated that he was recently awarded Social Security Administration (SSA) benefits for his “nerves.” The record, however, contains no indication that the RO has attempted to obtain these potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (the Federal Circuit Court acknowledged that VA's duty to assist was limited to obtaining relevant SSA records and defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate" the claim). Therefore, the RO should attempt to obtain those records on remand. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain complete STRs for all periods of active duty through official sources and potential repositories of such records, to include the Veteran’s Army Reserve unit. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and includes (a) the identity of specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Such notice should also inform the Veteran of alternative sources of evidence that may be submitted in place of his missing service records. 2. Obtain all SSA records, including a copy of the award letter. Any negative search results should be noted in the record. 3. Obtain the Veteran’s VA treatment records from August 2020 to the Present. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any psychiatric disorder. The entire claims file, to include a copy of this remand, should be made available to and reviewed by the examiner. The examiner should also be provided the Veteran’s verified dates of active duty service, ACDUTRA and INACDUTRA. Based on an interview of the Veteran and review of the claims file, the examiner should detail the Veteran’s psychiatric symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The examiner is asked to provide the following: (a.) Diagnose all current psychiatric disorders. The examiner should also consider the Veteran’s VA treatment records noting a diagnosis of depressive disorder with psychotic features. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. (b.) Opine whether it at least as likely as not (a 50 percent or greater probability), that the Veteran has a current psychiatric disorder that: (i) first manifested during active service; or (ii) is otherwise causally or etiologically related to active service injury or disease. (c.) The examiner should address whether the clinical record suggests that the Veteran developed psychosis in active service or within one year after separation from active service. (d.) The medical opinion should reflect consideration of the Veteran's lay assertions, including that his military training and discrimination caused his current mental health problems. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. 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. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.