Citation Nr: 21027065 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-42 824 DATE: May 4, 2021 REMANDED Entitlement to service connection for any acquired mental disability is remanded. REASONS FOR REMAND The Veteran had honorable active service with the United States Army from August 1981 to August1984. The Veteran also had service in the Marine Corps from January 1986 to February 1988. However, the Veteran's service in the Marine Corps is considered under other than honorable conditions and is a bar to payment of benefits for conditions or disabilities that occurred in or was due to that period. See Notification Letter dated December 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 rating decision, the RO noted that it was reopening the Veteran's previously denied mental health disorder claim, thereby implicitly finding that the Veteran had submitted new and material evidence sufficient to warrant reopening of his previously denied claim. The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in February 2020. A transcript of the hearing is associated with the claims file. The Board remanded the claim for development in April 2020, and January 2021. The Veteran was afforded a new VA examination completed in July 2020 and an addendum opinion was obtained from the same examiner in January 2021. See C&P Exam received August 2020 and January 2021. After, a Supplemental Statement of the Case (SSOC), the claims are back before the Board. First, the Board notes that the April 2020 remand expanded the scope of the Veteran's mental health claims to encompass any mental disorder that may be reasonably encompassed by the Veteran's description of his claim, reported symptoms, and other information of record pursuant to Clemons v. Shinseki, 23 Vet. App. 1(2009). Next, the Board notes that an October 2006 rating decision denied service connection for depressive disorder. The decision explained that the Veteran's Army records were silent for any complaints of or treatment for depression. However, the Veteran's Marine Corps service medical treatment shows treatment for an adjustment disorder with depressed mood. The VA examiner at that time opined that the Veteran's depression was related to depression first suffered while in service. Since the depression first manifested while in the Marine Corps, and the service in the Marine Corps was other than honorable, the Veteran was not qualified for any gratuitous benefits under the laws administered by VA and service connection for MDD was denied. See Rating Decision - Narrative received October 2006. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Veteran has alleged that during his first period of honorable service he experience a broken nose as a result of an assault. He contends that he has PTSD or a mood disorder as a result of his first period of service. The Veteran also explained that he felt that the VA examiner in December 2017 should not have diagnosed him with a personality disorder based on one examination. The Veteran explained that he has received treatment at the VA for PTSD as well as MDD, and that his own VA provider has removed the diagnosis of personality disorder from his problems list as he no longer meets the criteria for a personality disorder. See NOD received January 2018, VA 21-4138 Statement in Support of Claim received March 2018. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd1039, 1043-44 (Fed. Cir. 1994). In January 2021, the examiner stated that the Veteran only had a specified personality disorder. The examiner stated that the Veteran did not suffer from any psychiatric disorder that is either separate or distinct from a personality disorder. The examiner explained in her rationale that the Veteran did not meet the DSM 5 criteria for another psychiatric disorder beyond a personality disorder in the VA examination dated in July 2020. The examiner also opined that there was not another psychiatric disorder superimposed on top of the diagnosed personality disorder. See C&P Exam received January 2021. When considering the Veteran's current mental disabilities, the VA must consider the Veteran's relevant mental disabilities during the entire relevant period. While the VA examination that occurred in July 2020 was highly relevant to the Veteran's current mental disabilities, the opinion provided in January 2021 was conclusory. The opinion appeared to base its entire rationale that the Veteran had no other psychiatric disorders, other than a personality disorder, during the entire relevant period, on one examination. See C&P Exam received January 2021. As discussed above, the VA examiner must consider all of the relevant evidence of record when providing an opinion. The Veteran filed an application to reopen his claim for an acquired psychiatric disorder in November 2017. See VA 21-526EZ received November 2017. The examiner should consider the Veteran's relevant treatment records and VA examinations since November 2017 when considering the Veteran's current psychiatric disabilities. For example, in October 2018, the Veteran had treatment by a VA psychiatrist for depressive disorder and PTSD. The VA psychiatrist prescribed the Veteran medications including Carbamazepine, Trazodone, and Venlafaxine. See CAPRI received May 2020. In October 2018, the Veteran also reported suicidal ideation. Id. Upon remand a new opinion is to be provided by a new examiner which addresses whether any of the Veteran's current psychiatric conditions have any nexus or link to the Veteran's first period of service in the Army from August 1981 to August1984. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess his claim of entitlement to service connection for acquired mental disabilities. A complete copy of the claims file must be made available to the examiner. The examiner must consider the Veteran's lay reports of observable symptomatology. The examiner must also take a history regarding the symptoms from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) List any and all mental disabilities with which the Veteran is presently diagnosed within the relevant period, including whether he has a present diagnosis of PTSD, depressive disorder, MDD, and a personality disorder/s. Please consider all the relevant evidence and do not rely on a single VA examination. A complete rationale must be provided for all opinions offered. (b.) If the Veteran has any acquired mental health disabilities (like MDD, depressive disorder, or PTSD), discussed above as current disabilities, is it at least as likely as not (i.e. a probability of 50 percent or more) that the acquired mental health disabilities had their onset during the Veteran's honorable active Army service from August 1981 to August 1984 or within one year of separation from honorable active Army service from August 1981 to August 1984, or, otherwise resulted from the Veteran's active and honorable military service? The examiner should consider and address the Veteran's contentions that he has PTSD or a mood disorder because during his first period of honorable service he experienced a broken nose as a result of an assault. See Rating Decision-Narrative dated October 2006, granting service connection for the Veteran's broken nose; see also NOD received January 2018, VA 21-4138 Statement in Support of Claim received March 2018. (c.) If the Veteran has any mental health disabilities, generally considered as not acquired, like a personality disorder. (1) Did the condition clearly and unmistakably pre-exist the Veteran's honorable active Army service from August 1981 to August 1984, and (2) was the condition clearly and unmistakably not aggravated by the Veteran's honorable active Army service from August 1981 to August 1984. 2. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.