Citation Nr: 21026237 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-67 145 DATE: April 30, 2021 REMANDED Service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REASONS FOR REMAND The Veteran served on active duty from January 1979 to February 1979. The case is on appeal from a February 2015 rating decision. In January 2020, the Board reopened a previously denied claim of service connection for a nervous condition and denied service connection for an acquired psychiatric disability, to include PTSD. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in December 2020 granting a November 2020 Joint Motion for Partial Remand (JMPR). The Court’s order remanded the claim for action consistent with the terms of the JMPR. Service connection for a psychiatric disability. In the referenced November 2020 JMPR, it was stated that “[i]n December 2015, Appellant provided authorization for VA to obtain medical records from: (1) Dr. F[.], (2) Dr. J[.], (3) Dr. C[.], (4) Our Lady of Mercy Hospital, (5) Community Counseling Services, and (6) Dr. K[.].” The JMPR further stated that “VA’s duty to assist requires that a claimant be notified if VA is unable to obtain non-Federal records. 38 C.F.R. § 3.159(e)(1). The Board, however, failed to review this provision of law and discuss whether Appellant was in fact notified of VA’s inability to obtain these records” and that “[t]he Board’s failure to discuss whether VA fulfilled its duty to assist renders its reasons or bases inadequate….Because the Board must assess whether VA fulfilled its duty to assist, remand is required.” Review of the record indicates that VA attempted to obtain medical records from the six referenced private providers in January 2016 and that such efforts indicated that the Veteran’s records had been destroyed. The November 2017 statement of the case (SOC) stated under the evidence heading “[r]easonable efforts were made to obtain records from Drs. K[.], C[.], F[.], and J[.] as well as additional records from the Our Lady of Mercy Hospital and Community Counseling Services; however, custodians for each of these medical providers reported to VA that such records have been destroyed, notice received January 4, 2016 and January 12, 2016.” As such, the Veteran was in fact notified of VA’s inability to obtain records from the six referenced providers. The November 2020 JMPR also stated that “[o]n remand, the Board must readjudicate Appellant’s claim for service connection for an acquired psychiatric disability, to include PTSD. The Board must also ensure that VA fulfilled its duty to assist, to include whether the VA examinations of record are adequate, in light of the evidence of record.” Upon further review of the prior October 2017 VA examination, the Board finds that it is not entirely sufficient and that remand is accordingly warranted for a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Veteran was afforded a VA examination in October 2017 and an Initial PTSD Disability Benefits Questionnaire (DBQ) was completed by Dr. W.S. The DBQ noted that the Veteran did not have a diagnosis of PTSD and that he did not have a mental disorder that conformed with the DSM-5. It was also stated that “[i]t was essentially impossible to get a coherent history from the Veteran” and that “[b]ecause of the Veteran’s extremely limited ability to provide a history today, I simply do not have enough evidence to warrant the diagnosis of PTSD.” The DBQ additionally stated that the Veteran “denied nightmares and denied being unable to get out in public.” In a December 2017 statement accompanying his VA Form 9, the Veteran discussed the October 2017 VA examination. He stated that “I did not say I didn’t have nightmares…I said…The nightmares, and bad dreams, aren’t as bad with the medication.” He also stated that “I told the psychiatric examiner…[‘]I rarely leave the house[’]. Any interaction, or need to be out, around people can at times cause a panic attack. I try to limit my time out in public to shopping for necessities such as food. I avoid any interaction with people when avoidable” and he also reported telling the examiner that “‘I really don’t get out much.’” The Veteran further stated that “I may not have fully explained myself to the examiner. I don’t think the examiner took the time, nor made the effort, to fully work thru the questions with me” and that “[d]ue to my anxiety, feeling of being rushed, and confused I may not have been able to clearly explain myself to the psychiatric examiner.” When comparing the October 2017 VA DBQ with the Veteran’s December 2017 statement and the issues raised, the Board finds that a new VA examination is warranted. On remand, outstanding VA treatment records should be obtained. The Board notes that the current records of record appear incomplete. In this regard, the November 2017 SOC listed under the evidence heading “Treatment reports, Central Arkansas Veterans Healthcare System, from August 4, 1997 through November 28, 2016, received September 8, 2014 and November 29, 2017.” The most recent VA treatment records of record obtained by VA are dated in January 2015 and were obtained in February 2015. As such, the outstanding records referenced in the SOC should be obtained on remand. Also, in addition to the December 2015 authorization for private medical records previously discussed, the Veteran also noted on a December 2015 VA Form 21-4142a (General Release for Medical Provider Information to the [VA]) treatment at two Arkansas VA hospitals from 1993. VA did not subsequently appear to take any effort to attempt to obtain copies of the referenced VA treatment records dating from 1993. Based on the November 2017 SOC, it appears that electronic medical records exist from August 1997. Based on the Veteran’s report, paper records may exist prior to this date. See also October 1997 VA Mental Health Counseling Note (“First time to meet with [Veteran] who was referred for individual psychotherapy by L. C[.] Medical record (paper) was unavailable for review”). As such, on remand, VA should obtain copies of any paper records dated from 1993 forward available from the two Arkansas VA hospitals referenced on the December 2015 VA Form 21-4142a. Also, while on remand, VA should attempt to obtain any Social Security Administration (SSA) disability records that may be available. See October 2017 VA PTSD DBQ (“it appears [the Veteran] has received social security disability benefits for some time”); November 1997 VA Treatment Note (“[The Veteran] has filed for SSD [Social Security Disability] based on ‘PTSD’’). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records. This includes: (a.) Copies of any paper records dated from 1993 forward available from the two Arkansas VA hospitals referenced on the December 2015 VA Form 21-4142a. (b.) Records referenced in the November 2017 SOC (“Treatment reports, Central Arkansas Veterans Healthcare System, from August 4, 1997 through November 28, 2016”). (c.) Records from November 2016 to the present. 2. Attempt to obtain any SSA disability records that may be available. 3. Afford the Veteran a VA examination with respect to his acquired psychiatric disability claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired psychiatric disability had its onset during service or is otherwise related to service. (Continued on the next page)   The examiner’s attention is invited to the Veteran’s lay statements, to include a September 2014 VA Form 21-0781 (Statement in Support of Claim for Service Connection for [PTSD]), a February 2017 Veteran statement and a December 2017 Veteran statement accompanying his VA Form 9. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.