Citation Nr: 21026122 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 09-49 401 DATE: April 29, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from March 1978 to March 1982, with subsequent service in the Navy Reserve, including a verified period of active duty for training (ACDUTRA) from June 4 to June 20, 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board Hearing in June 2011. A transcript of the hearing has been associated with the claims file. In a June 2018 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court issued a Memorandum Decision, vacating the Board’s June 2018 decision and remanding the claim for further development. In the September 2020 Memorandum Decision, the Court found that the Board erred in relying upon an August 2009 VA medical opinion which found that there was no clear in-service link between the Veteran’s service and her current psychiatric disability. The Court explained that the opinion was inadequate because it did not consider October 1979 and May 1980 service treatment records that documented the Veteran seeking treatment for her mental health as well as a January 2009 private medical opinion submitted by the Veteran. The Court also found that the Board erred in not obtaining the Veteran’s Reserve service records which may document that the Veteran was prescribed medications by a Navy doctor, which she reported during a July 2015 VA examination. Finally, the Court indicated that the Board erred in not laying a proper foundation before drawing a negative inference from a lack of a documented treatment. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that the Board generally must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation”). Accordingly, the Board finds that a remand is necessary to obtain any additional Reserve service records which may exist, and to obtain an addendum opinion that addresses the nature and etiology of the Veteran’s current acquired psychiatric disorders. The Board notes that the Veteran has been diagnosed with several different psychiatric disorders throughout the period on appeal. As such, the matter on appeal has been broadly characterized as an acquired psychiatric disorder. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a veteran’s claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). The matter is REMANDED for the following action: 1. Contact the Veteran and her representative and with their assistance, identify any outstanding VA and private treatment records pertaining to any acquired psychiatric disorder. Upon receipt of the required authorization, the AOJ should obtain any and all outstanding records the Veteran and her representative identify. 2. Contact the appropriate service department and attempt to obtain all outstanding service personnel and treatment records for the Veteran’s reserve service. All attempts to procure such records must be documented in the file. If no records are available, a negative response must be included in the record. 3. Obtain a VA addendum opinion to determine the etiology of the Veteran’s acquired psychiatric disorder. The claims file must be made available to and be reviewed by the examiner. If it is determined that an opinion cannot be rendered without another clinical examination, then such examination should be scheduled. The VA examiner must answer whether it is at least as likely as not (i.e., 50 percent or more probable) that any acquired psychiatric disorder first manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. In rendering this opinion, the examiner must address: the October 1979 and May 1980 service treatment records which document the Veteran seeking treatment for emotional stress and personal problems, the Veteran’s assertion during the July 2015 VA examination that she was prescribed psychotropic medications in the 1980s, and the January 2009 private opinion issued by L.T. (initials used to protect privacy). The examiner should explain whether there is any medical reason to accept or reject the contention that the Veteran’s current psychiatric disorders were first manifested during service as demonstrated for evaluations for mental health during service. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a mental health diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Any opinion should be reconciled with the service treatment and personnel records, any post-service diagnoses, and lay statements and testimony of the Veteran. If the lay evidence is rejected, an explanation must be provided. If an opinion cannot be made without resort to speculation, please state so and include an explanation for that conclusion. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issue on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and her representative an opportunity to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.