Citation Nr: 21013696 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-01 738 DATE: March 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1976 to May 1976, and then again from October 1976 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2015 rating decision. The Board notes that the Veteran previously requested a hearing before a Veterans Law Judge, but this request was withdrawn in November 2019. See Correspondence (Hearing Related) (rec’d Nov. 5, 2019 ). The Board asserts jurisdiction accordingly. Entitlement to service connection for an acquired psychiatric disorder is remanded. By way of background, the Veteran’s claim for service connection for an acquired psychiatric disorder was first before the Board on December 13, 2019. See BVA Decision ( Dec. 13, 2019 ). This portion of the December 2019 Board decision was subsequently vacated, pursuant to a Joint Motion for Partial Remand (JMPR) that was granted by the United States Court of Appeals for Veterans Claims (Court) on October 8, 2020. See JMPR (Oct. 8, 2020). The December 2019 Board decision is otherwise final as to other issues no longer in appellate status. See Cacciola v. Gibson, 27 Vet. App. 45, 57 (2014) (providing that when an appellant expressly abandons an issue on appeal, “the appellant generally has relinquished his right to judicial review of the Board’s decision on an issue”). The JMPR indicates that the previous Board decision erred for finding that a May 2015 VA examination as adequate in light of some perceived doubt as to whether the examiner was aware of all pertinent medical facts, see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012), for failing to provide an adequate statement of reasons of bases for rejecting an October 2019 medical opinion, see 38 U.S.C. § 7104(d)(1), and for a failure to ensure that complete records from the Social Security Administration were associated with the Veteran’s claims file. See generally Court JMPR (Oct. 8, 2020). See also D’Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-5 (2007). The Board notes in passing that the October 2019 medical opinion, see Medical Treatment Record (rec’d Oct. 21, 2019 ), is from a private practitioner, who relied upon the Veteran’s global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, the Court, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. Moreover, the psychologist did not provide a rationale for the etiology opinion. As a result, the Board concludes that it is unable to grant the Veteran’s claim on appeal at this time. Instead, the Board remands for further development as may be required, addendum opinions, association of outstanding evidence, and to otherwise ensure that the Veteran is afforded substantial compliance with the JMPR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). 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 attorney and afford them 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. Any determination pertinent to the Veteran's claim for Social Security Administration benefits, as well as any medical records relied upon concerning that claim, should be obtained from Social Security Administration and associated with the claims file. 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). 3. After the receipt of any outstanding records, obtain a VA etiology opinion from an appropriate medical professional to confirm all relevant psychiatric diagnoses and to determine the nature and etiology of same. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must review the claims file and note that review in the examination report. The examiner must provide an opinion regarding the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s psychiatric disorder had its onset during service, or is otherwise related to service? The examiner should specifically address the relevance, or lack thereof, of the following: i. a June 10, 1977 record of mental health treatment “because he discharged his weapon in frustration;” ii. a June 16, 1977 mental status evaluation attributing “situational depression” to the Veteran; iii. an October 2019 medical opinion, except for findings relating to GAF scores; iv. Social Security Administration records, including any psychosocial assessments therein. (b.) If the examiner should fail to diagnose PTSD or generalized anxiety disorder with depression, then this negative finding should be specifically reconciled with a contrary, positive, earlier in time opinion from an October 2019 examination. 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 Michael B. Engle, 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.