Citation Nr: 21022557 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 14-02 530 DATE: April 16, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1961 to November 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an April 2014 videoconference hearing. A transcript of this hearing is of record. The procedural history is as follows. In a May 2018 Board decision, the Board reopened the service connection claims for gouty arthritis and a right hip scar, residual of a gunshot wound; denied reopening the service connection claims for hypertension, a post-operative abdominal injury, diabetes mellitus, type II, an acquired psychiatric disorder, to include anxiety disorder; denied service connection for a right hips scar, residual of a gunshot wound; denied an evaluation in excess of 30 percent for left chin scar; and remanded the service connection claims for gouty arthritis, bilateral hearing loss, and ischemic heart disease. The Veteran appealed the May 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2019 Order of the Court granting a February 2019 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate that portion of the May 2018 Board decision that denied reopening the service connection claims for hypertension, a post-operative abdominal injury, diabetes mellitus, type II, and an acquired psychiatric disorder, to include anxiety disorder; denied service connection for a right hip scar, residual of a gunshot wound; and denied an evaluation in excess of 30 percent for left chin scar and to remand the matters for compliance with the terms of the JMPR. First, the JMPR found that the Board did not comply with VA’s duty to assist when it did not obtain VA treatment records. Second, the JMPR found that in a February 1995 statement, the Veteran indicated that he had been treated for hypertension during service in 1963 at Landstuhl Army Hospital in Germany. The record does not include any hospital records from that facility, and there is no indication that any attempt to retrieve those records was made. Third, the JMPR found that because additional military personnel records were associated with the claims file since the last prior final denials, the Board did not provide an adequate statement of reasons or bases for its findings when it did not discuss reconsideration of the Veteran’s claims under the provision of 38C.F.R. §3.156(c). Finally, the JMPR found that the Board did not provide an adequate statement of reasons or bases to support a finding of whether the Veteran’s April 2014 Board testimony was new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder. In August 2019, the Board remanded the issues in order to comply with the terms of the JMPR. The Board requested that the RO contact all appropriate official sources to locate all records of the Veteran’s inpatient treatment in 1963 at Landstuhl Regional Medical Center in Germany, to include his reported treatment for hypertension and requested that the RO obtain all outstanding treatment records that are not currently of record. Pursuant to the August 2019 Remand directives, in December 2019, a search for inpatient treatments for the Veteran from January 1, 1963 to December 31, 1963 at Landstuhl Regional Medical Center in Germany resulted in no records being located. Further, all outstanding VA treatment records were associated with the claims file. In a November 2020 Board decision/remand, the Board found that new and material evidence had not been received to reopen the Veteran’s claims for hypertension, post-operative abdominal injury, and diabetes mellitus. In addition, the Board denied service connection for a right hip scar, and denied an evaluation in excess of 30 percent for a left chin scar. Furthermore, the Board remanded the Veteran’s claim for entitlement to an acquired psychiatric disorder, to include anxiety disorder in order to obtain a VA examination. 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder is remanded. The Veteran contends that his acquired psychiatric disorder, to include anxiety disorder is related to his military service. The Veteran testified that he is unsure as to what caused his anxiety but that he has had anxiety since service. In its November 2020 Board remand, the Board noted that the Veteran testified that he has suffered from symptoms of an anxiety disorder continuously since service. In addition, the Board indicated that the Veteran’s service treatment records show that in October 1962, the Veteran complained of insomnia and nervousness. Thus, the Board requested a VA examination with an opinion that must address the Veteran’s lay assertions as to onset of his anxiety disorder and his continuity of symptomatology since service. Pursuant to the Board remand, the Veteran was afforded a VA examination in January 2021. The examiner indicated that the Veteran has a diagnosis of anxiety disorder, NOS. The examiner commented that the Veteran’s anxiety disorder was intermittent in nature, with no present treatment and no indication that it is service-related. The examiner opined that it is less likely than not that the Veteran’s anxiety disorder incurred in or was caused by service. The examiner stated that the Veteran was diagnosed with an anxiety disorder based on self-report. The examiner noted that the Veteran’s records of many years do not demonstrate any treatment for this condition and the Veteran’s medical records do not clearly show the source of the Veteran’s anxiety. The examiner noted that in a January 1974 VA examination, the examiner asserted that the Veteran had a nervous condition that comes and goes and that the Veteran was being treated by a private physician, off and on, for his nerves. The examiner expressed that the VA examination did not attribute the Veteran’s nervous condition to his military service and that there is no evidence to suggest the onset of the Veteran’s condition was during service or in any way worsened by his service from 1961 to 1964. The examiner reported that the Veteran indicated that his condition started 2 or 3 years after he got out of the service, but that the Veteran did not attribute his condition to anything during service. In March 2021, the Veteran’s representative stated that a further remand for compliance with the Board’s remand directives was necessary as the VA examiner failed to mention the Veteran’s hearing testimony, and the Veteran’s service treatment records from October 1962 reporting complaints of insomnia and nervousness. After review of the January 2021 VA opinion, the Board is in agreement with the Veteran’s representative, and finds that a new VA examination is warranted in order to address the Veteran’s service treatment records and complaints of anxiety since being discharged. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Ask the Veteran to provide authorizations for any outstanding private medical records he would like considered in connection with his appeal for his anxiety disorder. 3. Thereafter, schedule the Veteran for a VA examination, by an examiner who has not previously examined the Veteran, to determine the nature and etiology of the Veteran’s anxiety disorder, NOS. All pertinent evidence of record, to include a copy of this REMAND must be made available to and reviewed by the examiner. Following an examination and review of the records, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s anxiety disorder, NOS, had its onset in service or within one year following separation from service, or was causally related to service. The examiner must address the Veteran’s service treatment records that show that in October 1962, the Veteran complained of insomnia and nervousness. The examiner must address the Veteran’s lay assertions as to onset of his anxiety disorder and his continuity of symptomatology since service. The examiner is to take note and discuss the January 1974 VA examination in which the Veteran reported extreme nervousness. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, then a reason for doing so must be provided. A complete rationale must be provided for the opinion proffered. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.