Citation Nr: 21021492 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-29 134 DATE: April 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1990 to September 1991, with additional service in the National Guard. This case is before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and June 2012 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for major depressive disorder, claimed as nervous condition. The Veteran’s notice of disagreement was received in June 2012. The RO issued a statement of the case in June 2014. The Veteran’s VA Form 9, substantive appeal to the Board, was received in July 2014. In April 2018, the Board remanded the case to the RO for further development and adjudicative action. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. The Veteran contends his acquired psychiatric disorder is due to his service during the Persian Gulf War. Specifically, in his October 2011 correspondence the Veteran writes about his deployment in the Persian Gulf in October 1990, therein noting that he guarded the perimeter, patrolled the area, and felt great fear traveling from one point to another while coming into contact with the Iraqi population. He further noted getting lost in the desert, becoming anxious “at every incident of war”, observing constant mortar attacks from the ships, and thinking at any moment one of the missiles would land on himself and fellow soldiers killing them. He also reports that upon his return, he began having problems with insomnia, anxiety, depression, anger outbursts, poor concentration, and interpersonal relationships and that his emotional state began affecting his physical state. The Veteran asserts his emotional state is directly connected to his traumatic experience in the Persian Gulf War. Upon review of the record, the Board finds additional development of the Veteran’s claim is necessary. First, according to his DD-214, initial claim for disability benefits, and service treatment records, the Veteran’s military service dates back to 1979 through 1993. However, beyond the specific dates of active duty service noted on his DD-214, there is no clarification as to the dates and nature of the remainder of his service. Second, the necessary development to verify the Veteran’s alleged stressors has not been performed. Third, although there are several favorable pieces of evidence to support the Veteran’s contentions, discussed in greater detail below, he was not provided a formal VA psychiatric examination until December 2020 and the associated opinion does not address such. In this respect, service treatment records reflect the Veteran’s report of nervousness on a November 1992 Medical Examination. Additionally, a January 1995 San Juan VA Medical Center record indicates an impression of PTSD. Further, private treatment records from March 2003 note the Veteran has had memory problems since 1991 and has been emotionally ill since the Gulf War. Moreover, records from the Social Security Administration (SSA) dated in May 2003 describe the Veteran as very depressed. Although the Veteran first filed his claim for a psychiatric disorder in 2006, which was originally denied in January 2007, a formal VA examination was not provided until December 2020. Notwithstanding his note of previous diagnoses of major depression, panic disorder, and agoraphobia, the December 2020 VA examiner provided a diagnosis of unspecified depressive disorder at that time. However, the examiner opined the Veteran’s current acquired psychiatric disorder less likely than not had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service and provided the following rationale: No evidence to suggest current Unspecified Depressive Disorder had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service as records suggest a manifestation since 2002. Here, the examiner’s medical opinion is inadequate for the purpose of determining entitlement to service connection. First, the examiner did not provide a complete rationale for the opinion offered, noting only that the Veteran’s current acquired psychiatric disorder did not manifest until 2002. Second, the examiner did not address the aforementioned favorable evidence, the Veteran’s lay statements, or the aforementioned historical diagnosis of PTSD. In light of the above, the Board finds a remand is warranted for additional development, to include verifying the dates and nature of the Veteran’s periods of service, obtaining all outstanding records, attempting to verify the Veteran’s reported stressors, and affording the Veteran a proper VA examination to determine whether he has an acquired psychiatric disorder, to include PTSD, related to service. The matter is REMANDED for the following actions: 1. Obtain the claimant’s complete service treatment and personnel records, through official sources, including from his service in the Army National Guard. The RO should document all attempts to obtain those records. If those records are unavailable and further attempts to obtain those records would be futile, the RO should document its efforts in a Memorandum of Unavailability, associated with the claims file, and the claimant should be so notified. After completing the above, the RO should then verify all periods of ACDUTRA and INACDUTRA that the claimant served during his Reserve and National Guard service, to particular include his period of service from 1991-1993. After obtaining, or documenting all attempts to obtain, such information, the RO should place a Memorandum in the file that indicates the exact dates of service and each type of service he served on those dates. The RO is reminded that merely placing documents in the claims file without compiling a list of specific dates of service would be inadequate and will not substantially comply with this remand directive. 2. Following verification of all dates and types of service, through official sources including but not limited to the Joint Services Records Research Center (JSRRC), the RO should then attempt to verify the Veteran’s claimed in-service stressors. All such attempts should be documented in the record. 3. After completing the above development, ensure that the Veteran is scheduled for a proper (PTSD) VA examination with an examiner who has not previously participated in this case in order to determine the nature and etiology of his claimed acquired psychiatric disorder, to include PTSD. The examiner should note review of this remand and the entire claims file. The examiner’s attention is directed to: (a) the November 1992 Medical Examination noting nervousness, (b) the January 1995 San Juan VA medical center record PTSD diagnosis, (c) the private treatment records from March 2003 indicating the Veteran has had memory problems since 1991 and been emotionally ill since the Gulf War. The examiner then should address the following inquiries: (A) Identify all current acquired psychiatric disorders that have been present at any point pertinent to the Veteran’s claim, even if such is asymptomatic or has since resolved, that meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). In this regard, the examiner should address the evidence reflecting diagnoses of major depression, panic disorder, agoraphobia, anxiety, and PTSD. (B) If a diagnosis of PTSD is rendered, the examiner should offer an opinion as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) the result of a verified in-service stressor. (C) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disorder is related to the Veteran’s military service, to include, if verified, his claimed stressor. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder. He or she should also consider the Veteran’s reports that his psychiatric symptomatology had its onset in approximately 1991 and has continued to the present time. A rationale for any opinion offered should be provided. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.