Citation Nr: 21029677 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-36 566 DATE: May 14, 2021 REMANDED Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1968 until his honorable discharge in May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 decision by the Cleveland, Ohio, Regional Office of the United States Department of Veterans Affairs (VA), which confirmed and continued its previous denial for service connection for PTSD, also claimed as passive aggressive personality, emotional unstable personality disorder. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In June 2019, the Board remanded the claim to the VA Regional Office for further development because evidence was obtained by VA before the appeal was certified and transferred to the Board, thus requiring issuance of a supplemental statement of the case. The Board also directed the VA Regional Office to conduct any necessary development based on the evidence received. The Board has now recharacterized the Veteran's claim for service connection for PTSD as one for an acquired psychiatric disability, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim may include any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). On remand, the VA Regional Office obtained a November 2019 VA-contracted examination addressing the Veteran's psychiatric disabilities. The examiner opined the Veteran's PTSD was less likely than not related to his active military service. As part of the examiner's rationale, she stated that the symptoms for which the Veteran received treatment while in service were not consistent with his current symptoms, "or, there is no evidence that the symptoms were continuous or the same entity since military service." The examiner did not identify the symptoms on which she based her analysis. The Board is unable to determine to which symptoms the examiner has referred. Thus, remand is necessary for an addendum opinion. In addition, the record may be incomplete. As noted by the examiner, the Veteran reported a mental breakdown while service in Vietnam. The Veteran reported receiving treatment at Rhode Island Naval Hospital. The examiner located the incident in military records but not the Veteran's in-service treatment records. The Veteran's file indicates he received treatment at that hospital from February 1969 to April 1969, but only a February 15, 1969 narrative summary of a clinical record from the hospital is associated with his file. Yet, a January 10, 2019, correspondence from the National Personnel Records Center sent to the Veteran's congressman indicates it has located "1969 inpatient medical records from New Port, Rhode Island, Naval Hospital." It is unclear whether these records are part of the Veteran's file. Thus, remand is necessary to attempt to obtain these potentially outstanding records, as such records may reasonably impact the examiner's opinion and rationale. As a final note, the Board recognizes it has yet to issue a decision on whether or not to reopen the Veteran's claim for service connection for an acquired psychiatric disability. The Board finds it is more sensible to wait to make that determination because if further development reveals missing in-service treatment records, then new and material evidence may not be required to reopen the Veteran's claim. See 38 C.F.R. § 3.156(c)(1) ("[A]t any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim."). Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Send an appropriate request to the National Personnel Records Center requesting all medical records associated with the Veteran's medical treatment at the New Port, Rhode Island, Naval Hospital in 1969. Document all requests for information as well as all responses in the claims file. If unavailable, make a formal finding of unavailability and associate such with the record. 3. After any additional records are associated with the claims file, obtain an addendum opinion from the November 2019 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's psychiatric disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding the following: (a.) Based on review of the record and prior VA examinations, the examiner must first identify all psychiatric disabilities, to include personality disorders, present during the pendency of the claim, or proximate thereto. (b.) The examiner is then asked to opine as to whether any psychiatric diagnoses are separate and distinct disabilities, or whether a diagnosis (and associated symptoms) is more appropriately encompassed by or overlap with another psychiatric disability. The examiner should specifically identify the symptoms related to each separate psychiatric diagnosis. If the examiner cannot distinguish the symptoms of one psychiatric disability from another, this must be clearly stated. (c.) Then, for each separately identified acquired psychiatric disability, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that such disability had its onset during active service, or is otherwise etiologically related to such service, including as a result of his reported in-service stressors while in Vietnam. The examiner should presume that the Veteran is a reliable historian with regard to his fear of hostile military or terrorist activity and other experiences while serving in Vietnam. (d.) If the Veteran is diagnosed with a personality disorder, is it at least as likely as not (50 percent probability or greater) that the personality disorder was subject to a superimposed acquired psychiatric disability during active duty service? The examiner is asked to specifically consider and, if deemed relevant, address the in-service diagnosis of emotionally unstable personality disorder in April 1969, and the post-service diagnosis of passive-aggressive personality disorder in August 1989. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his symptoms, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.