Citation Nr: 21014091 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-35 726 DATE: March 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic 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 June 1968 to June 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg Florida, in which the RO confirmed and continued a previous denial of service connection for PTSD. In June 2015, the Board expanded the Veteran’s claim to encompass any diagnosed psychiatric disorder, including PTSD. The Board then “reopened” the Veteran’s claim and remanded the case to the agency of original jurisdiction (AOJ) for additional development and adjudication on the merits. The matter was thereafter thrice remanded, most recently in March 2020. 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD and major depressive disorder. Although the Board sincerely regrets the additional delay, the matter must again be remanded to ensure that the evidence developed by VA is adequate to rely upon and that there is a complete record upon which to decide the Veteran’s claim. As noted above, the matter was most recently remanded in March 2020. In that action, the Board discussed the various examination reports of record and why there were inadequate to rely upon for adjudication purposes. Specifically, it was noted that the rationale provided for concluding the Veteran’s diagnosed MDD was not related to service was inadequate because it relied on the absence of in or shortly after service. The Board thus determined that a new opinion was necessary and instructed that complete rationale was required in opining whether it was at least as likely as not that any diagnosed psychiatric disorder was related to service. The opining clinician was advised that the absence of evidence in the service treatment records was an insufficient basis, by itself, for a negative opinion. An addendum medical opinion was obtained in June 2020. The reviewing clinician discussed the evidence of record, to include that which did not support a diagnosis of PTSD. Regarding the Veteran’s diagnosed MDD, the clinician opined that is was less likely than not the Veteran’s MDD manifested in service or was otherwise related thereto. As rationale for that opinion, the clinician simply stated: “Records indicate that his current diagnoses have no nexus to service and are most likely secondary to willful use of illicit substances and poor life choices.” The Board notes that when the Secretary provides the claimant with a VA medical examination or opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA medical examination or opinion is adequate if it is “thorough and contemporaneous,” considers the veteran’s prior medical examinations and treatment, and “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Indeed, a “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The medical opinion must also “support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Stefl, 21 Vet. App. at 124; see Nieves-Rodriguez, 22 Vet. App. at 304 (“most of the probative value of a medical opinion comes from its reasoning”). Unfortunately, the Board again cannot conclude that the VA clinician’s opinion with regard to the etiology of the Veteran’s MDD is adequate to rely upon as it is merely a bald conclusion without support or reasoning. Indeed, the clinician has not explained in any fashion why records to not support a finding that the Veteran’s MDD may be related. Rather, the clinician focused on the likely etiology of the MDD, again without any explanation for how she reached such a conclusion. Overall, the Board cannot conclude that the opinion report is adequate and therefore must again remand the matter for an additional medical opinion. See Barr, supra; see also Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA “a concomitant duty to ensure compliance with the terms of the remand”). The Board notes additionally that, since this matter is being remand, the Veteran will be afforded another opportunity to have VA assist in obtaining potentially relevant records. The record shows that subsequent to the March 2020 Board remand the AOJ requested the Veteran complete and return VA Form 21-4142 Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a,General Release for Medical Provider Information to the Department of Veterans Affairs (VA). The Veteran did not respond to this request or a follow up request. The Veteran is hereby advised that the records are being requested to assist VA in properly adjudicating his claim, and that his failure to identify relevant records and provide appropriate releases may result in his claim being decided without a fully developed record. The Court has indicated that “[t]he duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran desires help with his claim, he must cooperate with VA’s efforts to assist him. Id. Although the Veteran did not respond to the previous request, the Board notes that a review of the record suggests that potentially relevant records remain outstanding. The Veteran’s VA treatment records dated in July 2011 indicate that he was followed by the jail psychiatrist at the Escambia county jail. In February 2016, it was noted the Veteran was incarcerated in Escambia county jail and needed his PTSD medications. The current evidence of record contains medical treatment records from Escambia county jail. However, those records predate the VA treatment records cited above. This suggests that the Escambia county jail has records that are dated after the most recent records obtained from Escambia county jail that may be relevant to present case as it was noted he received treatment for PTSD. As such a remand is necessary to obtain updated records. The record also suggests there are additional records that may be relevant to the Veteran’s claim. Specifically, a June 2004 counseling session notes indicates that the Santa Rosa correctional facility was contacted to obtain medical records. No such records are in the current record. Records dated in March 2004 and July 2011 indicate the Veteran was hospitalized in Gulfport, but records are not available to document that admission. October 2017 VA treatment records indicate he had a psychiatric hospital stay and went “to Baptist, to Lakeview and to West Florida (Pavilion)” and was then treated inpatient for 18 days and was discharged on or about September 1, 2018. May 2018 VA treatment records show he presented for treatment following an admission to the West Florida Pavilion inpatient psychiatric hospital; records from the admission have not been obtained. The records outlined above may be helpful in determining if the Veteran is diagnosed with PTSD as they are records of inpatient treatment for mental health symptoms. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See 38 U.S.C. § 5103A(b)(1) (setting forth VA’s duty to obtain relevant records); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed.Cir.2010) (defining 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 veteran’s claim”). On remand, the Veteran should be afforded another opportunity in assisting VA to obtain these records. Updated records of VA treatment should also be procured. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The matter is REMANDED for the following action: 1. Ask the Veteran to provide releases for relevant records of treatment from Escambia county jail; the Santa Rosa correctional facility; Gulfport hospital; Baptist, Lakeview, and to West Florida Pavilion, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran, and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After records have been obtained, or an appropriate time for response has expired, arrange to obtain from an appropriate VA psychologist or psychiatrist who has not yet offered an opinion in connection with the claim on appeal an addendum opinion addressing the etiology of the Veteran’s MDD, based on claims file review (if possible). Only arrange for examination of the Veteran, by an appropriate clinician if one is deemed necessary in the judgment of the clinician designated to provide the addendum opinion. The contents of the entire, electronic claims file must be made available to the designated clinician. Upon review of the claims file, the clinician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s MDD had its onset during service, or is otherwise etiologically related to service. Complete, clearly-stated rationale for the opinion expressed, to include specific discussion of the Veteran’s lay assertions, must be provided. (Continued on the next page)   If the clinician’s opinion is negative, he or she must clearly explain why, to include discussion of why the evidence does not support a finding that the Veteran’s MDD is related to service. Specific evidence relied upon must be discussed and an explanation as to why such evidence preponderates against such a finding must be included. The clinician is reminded that to simply state that the evidence does not support a nexus is insufficient. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.