Citation Nr: 21013483 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-40 551 DATE: March 9, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and insomnia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 1956 to December 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for an acquired psychiatric disability, to include PTSD. The Veteran seeks service connection for a psychiatric disability, originally claimed as PTSD. In light of other psychiatric diagnoses of record, however, the Board has recharacterized the issue as entitlement to service connection for a psychiatric disorder, to include PTSD and insomnia. Clemons v. Shinseki, 23 Vet. App. 1, 4-6, 8 (2009). This matter was previously remanded in March 2019 and October 2020 for additional development. Unfortunately, another remand is required in this case to ensure that there is a complete record upon which to decide the claim for service connection for an acquired psychiatric disability. Entitlement to an acquired psychiatric disability, to include PTSD and insomnia, is remanded. The Veteran’s VA treatment records show that he has been receiving treatment at a Vet Center. Notably, Vet Center records are deemed in the constructive possession of VA. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.) for determining that Vet Center records are generated by VA agents or employees which are deemed within the Secretary’s control and, thus, are deemed constructively of record). The Veteran’s VA treatment records also show that he has received psychiatric treatment and counseling from private providers. See November 2016 VA treatment record (documenting Veteran’s non-VA primary care physician, Dr. P.M.); March 2019 VA treatment record (Veteran meets with Marines group at YMCA monthly). Accordingly, a remand is required to obtain these records. The Board remanded this matter in March 2019 and October 2020 to schedule the Veteran for VA examinations. Although the Veteran was notified that these examinations were scheduled, he failed to attend or provide good cause for his failure to attend. When a Veteran fails to report for an examination without good cause, the claim shall be decided in accordance with 38 C.F.R. § 3.655(b) or (c). While the record shows questionable diagnoses of PTSD, the record clearly shows a diagnosis of insomnia. To date, a medical opinion has not been obtained that addresses whether the Veteran’s insomnia is related to his service. Accordingly, a remand is required to obtain a medical opinion as there is no adequate opinion upon which the Board may properly adjudicate the claim. The Veteran is reminded that the duty to assist is a two-way street. Thus, he is required to cooperate by attending any future VA examinations or communicating with VA as to why the Veteran is unable to attend any VA examinations. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The same applies for submitting the required medical releases that would allow VA to obtain his private treatment records. Failure to cooperate could result in denial of his claim. The matter is REMANDED for the following action: 1. Associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically to include any records from the Vet Center where he attends counseling. 2. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received, to specifically include records from his primary care physician, Dr. P.M., and any records from the Marines group he meets with at the YMCA). The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the above development is completed, arrange for a VA examination of the Veteran (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and likely cause of any psychiatric disability. The examiner should review the claims file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all psychiatric disabilities present during the appeal period. (b) If PTSD is not diagnosed, explain why the Veteran does not meet the criteria for such diagnosis AND specifically reconcile that finding with the diagnosis of PTSD found in the Veteran’s November 2016 and January 2017 VA treatment records. The examiner is specifically requested to address the March 2019 VA treatment record showing the Veteran’s diagnosis of PTSD is largely in remission. (c) For any other psychiatric disorder that is diagnosed, to include insomnia, is it at least as likely as not (50 percent or greater probability) that such disorder is etiologically related to the Veteran’s active duty service? A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. T. MATTA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.