Citation Nr: 21029759 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-27 469A DATE: May 21, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1981 to February 1985 and also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board last remanded this matter to the RO for further development. As an initial matter, the Board notes that following the issuance of a September 2020 Supplemental Statement of the Case (SSOC), the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, listing the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression. See October 2020 VA Form 20-0995. As the Veteran did not check the box on this form ("opt-in from SOC/SSOC") to withdraw his claim from the legacy appeals process and to opt-in to the new, modernized review system under the Appeals Modernization Act (AMA), or otherwise submit a letter requesting withdrawal of his legacy appeal, he did not meet the conditions required to opt the issue into the supplemental claim lane under the AMA. Accordingly, this matter remains before the Board under the legacy appeals system. See 38 C.F.R. § 3.2400. The Board notes that 38 C.F.R. § 3.2500 precludes concurrent review of an appeal, and it was improper for the Agency of Original Jurisdiction (AOJ) to process the supplemental claim and to have issued the subsequent rating decision on this matter. For these same reasons, the Veteran's December 2020 VA Form 20-0995, Decision Review Request: Supplemental Claim, listing PTSD, also did not opt this claim into the AMA system. As such, VA notified the Veteran, in January 2021 correspondence, that his PTSD claim was already being processed on appeal and, as such, his supplemental claim could not be accepted. The Board also notes that VA treatment records have been added to the claims file since issuance of the last SSOC in September 2020. However, there is no prejudice to the Veteran as his claims are being remanded. The Board notes that upon remand, the AOJ will review this new evidence in the first instance during readjudication of the claim. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the appellant with the appropriate assistance in developing his claims prior to final adjudication. First, the evidence reflects that there may be outstanding private treatment records pertinent to the Veteran's claim. Specifically, the Veteran has reported receiving treatment from Plateau Mental Health Center approximate to his discharge from active service. See September 2009 SSA psychological evaluation; December 2020 Correspondence. These treatment records are not of record and may be helpful to the Veteran's claim. He also reported counseling through the Knoxville Veteran Center for PTSD and treatment through the Volunteer Behavioral Health Care System. See October 2020 medical record; December 2020 Correspondence. Further, a September 2009 SSA psychological evaluation reflects that the Veteran reported that he first received inpatient treatment in Nashville approximately ten years prior. Complete records from these facilities do not appear to be associated with the claims file. Accordingly, a remand is warranted for the AOJ to attempt to obtain these outstanding private treatment records. Next, the Board finds that the last VA opinions of record, in February 2020 and September 2020, are inadequate. In this regard, in February 2020, the Veteran underwent a mental disorders (other than PTSD and eating disorders) examination and was diagnosed with major depressive disorder. The VA examiner opined that the Veteran's psychiatric disorder was not related to service because his symptoms of depression were more likely associated with proximate life events (e.g. homelessness and finances) rather than a remote event from 1982. In a September 2020 addendum opinion, the same examiner again found that it was less likely than that that the Veteran's claimed condition was related to service because the Veteran's current symptoms of depression were not congruent with what would be expected as a reaction to his reported incidences in 1982 or 1983. The Board finds that the VA examiner's opinion and addendum opinion are inadequate because the examiner did not provide any rationale for his conclusions. Specifically, the VA examiner did not explain why he concluded that the Veteran's symptoms were more likely associated with proximate life events, despite the evidence of record showing mental health treatment since at least the late 1980s, and did not explain why he concluded that the Veteran's symptoms were not congruent with expected reactions from his reported in-service incidents in 1982 or 1983. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the February 2020 and September 2020 opinions do not reflect consideration of the Veteran's lay statements of experiencing depression in and since service. A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, despite the evidence of record indicating that the Veteran may have a PTSD diagnosis, the Veteran did not undergo a PTSD examination. Accordingly, a remand is also warranted to afford the Veteran a VA examination and opinion that adequately addresses the medical and lay evidence of record and includes complete rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, upon review of the record, the Board finds that it is unclear whether the Veteran's complete Army National Guard records and Social Security Administration (SSA) disability medical records are associated with the claims file. In this regard, the evidence of record includes a January 1990 National Guard enlistment examination and February 1994 periodic Report of Medical History; however, additional treatment records from the Veteran's National Guard service are largely absent from the claims file including a separation examination from this service. Additionally, although the record contains SSA medical records related to the Veteran's SSA disability benefits, it is unclear whether all pertinent SSA records are associated with the claims file. As such, on remand, the AOJ should ensure that the Veteran's claims file includes complete records from these sources. The matters are REMANDED for the following action: 1. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center (NPRC), and request the Veteran's complete service personnel and treatment records, to include treatment records and personnel records from any verified period of National Guard service. All efforts to obtain the National Guard records must be documented in the claims file. 2. Obtain and associate with the claims file any records in possession of the SSA, not already in the claims file, that are pertinent to the Veteran's claim. Make a notation in the claims file of all attempts to obtain these records and all responses received. 3. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment record is dated December 2020. 4. Provide the Veteran with another opportunity to identify and/or submit any outstanding private treatment records relevant to his claims. Ask the Veteran to complete the required authorization forms for any private treatment he has received for his claimed conditions. The evidence shows private treatment from Plateau Mental Health Center (from at least as early as 1988), Knoxville Veteran Center for PTSD counseling, and from the Volunteer Behavioral Health Care System. He also indicated that he was hospitalized in Nashville in approximately 1999/2000. See September 2009 SSA psychological evaluation. After obtaining any necessary authorization from the Veteran, attempt to obtain and associate any identified records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file. 5. Then, schedule the Veteran for a VA examination with an appropriate medical professional, other than the February 2020 VA examiner, to determine the nature and origin of the Veteran's acquired psychiatric disorder, to include PTSD, anxiety, and depression. The claims file, including a copy of this Remand, should be made available to and be thoroughly reviewed by the examiner. A history of the development of mental health issues in service and post service must be taken and reported. The examiner is asked to respond to the following: (a) Following a review of the claims file and examination of the Veteran, identify/diagnose any psychiatric disorder that presently exists or that has existed during the appeal period (since August 2011). Reference is made to the records reflecting diagnoses of major depressive disorder, anxiety disorder, and alcohol use disorder. See July 2018 VA treatment record; July 2019 letter from the Cookeville VA clinic physical assistant; and February 2020 VA examination. (b) If PTSD is diagnosed, the examiner should specify the incident or stressor with which that diagnosis is being made and whether such stressor occurred during military service. If PTSD is not diagnosed, the examiner MUST address how that finding reconciles with the treatment records reflecting a PTSD diagnosis. See May 2011 Physician Associates of Cookeville Regional treatment record indicating an assessment of PTSD and Volunteer Behavioral Health Care System treatment record indicating a PTSD diagnosis from August 2020. (c) For each non-PTSD identified psychiatric disability, to include major depressive disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such was incurred in or is otherwise related to service, to include BOTH of the Veteran's reported stressors relating to a 1982 motor vehicle accident in Germany resulting in the death of his fellow servicemen and a 1983 assault. The examiner is advised that the RO has conceded that the in-service stressors occurred. See September 2020 SSOC. A complete rationale should be provided for all opinions and the examiner must address the Veteran's lay statements regarding onset of symptoms and continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider all medical and lay evidence of record, including the (1) active duty service discharge Report of Medical History where the Veteran reported frequent trouble sleeping, nervous trouble of any sort, and that he has always been nervous; (2) January 1990 Army National Guard Report of Medical History where he appears to have checked yes to having or ever had experienced depression or excessive worry; and (3) Army National Guard February 1994 periodic Report of Medical History where he indicated that he experienced depression or excessive worry, frequent trouble sleeping, and nervous trouble of any sort and noted that he was treated at Plateau Mental Health, Cookeville in 1988 for depression and panic attacks. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.