Citation Nr: 21022758 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-26 087 DATE: April 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, and anxiety, and Posttraumatic Stress Disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1971 to July 1973 and in the Air National Guard from February 7, 1991 to February 24, 1991. The Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The claim has therefore been recharacterized to include service connection for any acquired psychiatric disorder, to include PTSD, anxiety, and depression. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a June 2019 Board decision, entitlement to service connection for PTSD was reopened, but service connection for a psychiatric disability, to include PTSD, was denied. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In May 2020, based on a Joint Motion for Partial Remand (JMPR), the Court remanded the issue, finding that VA must seek corroboration of stressors from the Joint Services Records Research Center (JSRRC). In October 2020, the Board remanded the matter. Instructions required that the JSRRC, and any other organization deemed appropriate, must determine whether verification of the Veteran’s stressors, to include those listed in June 2017 and September 2018 statements, was possible. Responses, including negative ones, were to be associated with the claims file. In December 2020, a response was associated with the Veteran’s claims file. However, it appears the request has conflated the two separate stressor allegations, resulting in noncompliance with the remand directive. In June 2017 the Veteran reported that he witnessed a cargo plane land at the Marine Corp Air Station (MCAS) at the Royal Thai Air Force Bae (RTAFB) in Nam Phong, Thailand, and witnessed dead and wounded being unloaded, presumably from Vietnam. No attempts were made to verify this allegation, or to obtain information as to whether it was likely or even possible based on how casualties were handled from October 1972 to July 1973. The response was more focused on addressing the September 2018 stressor allegation, in which the Veteran reported that more than a year after his separation from service, he was in a car accident in California and lost consciousness. When he awoke, he saw Asian staff, and thought he was captured by the North Vietnamese. The response reports the accident took place in Thailand, which is not correct, and as it happened after service, cannot be an in-service stressor. Therefore, no further action is necessary with regard to this allegation. However, an attempt to verify the June 2017 stressor statement must be made in order to comply with CAVC’s JMPR and with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is also warranted for a new examination. The correct diagnosis is at issue; prior findings have disputed the accuracy of a PTSD diagnosis, or have stated an anxiety or depressive disorder are present. Also, in a January 2021 brief, the Veteran’s representative pointed out that the original contention regarding service connection for anxiety and depression secondary to prostate cancer. This specific contention was originally denied in a September 2009 rating decision on the basis that the prostate cancer was not service connected. However, the Veteran was subsequently granted service-connection for prostate cancer in the July 2017 rating decision. The theory of secondary entitlement has not been addressed anew. Finally, efforts to obtain private medical records must be completed. The Veteran’s VA treatment records consistently refer to psychiatric treatment from an outside provider. However, private treatment records concerning psychiatric treatment have not been obtained since 2009. Accordingly, attempts to obtain relevant private records must be undertaken. 38 C.F.R. § 3.159(c). While it appears updated VA treatment record have been associated with the record through December 2020, more recent records should be obtained. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records, from December 2020 to the present. 2. Take appropriate steps, including securing proper releases from the Veteran, to identify and obtain complete private psychiatric treatment records. 3. Contact the U.S. Army Joint Services Records Research Center (JSRRC) and any other organization deemed appropriate, to determine whether they can verify the Veteran’s June 2017 stressor statement, or provide information on whether it is at least as likely as not casualties would have transited through Nan Phong RTAFB in 1972 and 1973. The response, including a negative one, should be associated with the claims file. 4. Schedule the Veteran for a VA mental disorders/initial PTSD examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed psychiatric disorders and for each must opine as to whether it is at least as likely as not caused or aggravated by military service or a service-connected disability, to include prostate cancer. Full and complete rationales are required for all opinions expressed. 5. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.