Citation Nr: 21031571 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-17 639 DATE: May 24, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to September 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing is of record. The Veteran submitted additional evidence on the day of the hearing for which there is an automatic waiver of initial agency of original jurisdiction (AOJ) consideration. See also June 2020 supplemental statement of the case. In a June 2019 decision, the Board reopened the claim and remanded the underlying merits for further development. The case has since returned to the Board for appellate review. The Veteran is now represented by the above-named accredited representative, and a signed VA Form 21-22a is of record. On review, the Board finds that additional development is necessary prior to adjudication of the issue. In the prior remand, the Board instructed the AOJ to make another attempt to secure any outstanding service personnel records, as well as in-service records of mental health treatment and evaluations (mental health jacket). The record shows that the AOJ did request the complete service treatment records and entire personnel file from the National Personnel Records Center (NPRC), and the NPRC sent responsive records. See January 2020 3101 print and January 2020 response. However, it is unclear if a specific request for any mental health records was made. In addition, the Board instructed the AOJ to secure any outstanding VA treatment records, including from the Oakland Outpatient Clinic and the VA Palo Alto Healthcare System (HCS) dated prior to 2002. The AOJ did request and received a negative response from the VA Palo Alto HCS in this regard (see January 2020 7131 request and January 2020 response), but it does not appear that a similar request was made to the Oakland Outpatient Clinic. For these reasons, a remand is needed to secure any outstanding records and ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, in response to the Board's remand, the Veteran was afforded a VA examination in February 2020 with the same examiner who provided the December 2014 VA examination and February 2015 clarifying opinion. The Veteran has again contended that the examiner did not fully consider his reported in-service personal assault history, including all markers in the record, and failed to address whether the identified preexisting PTSD underwent an increase in the severity during service. See October 2020 representative written statement. Based on the foregoing, and on review of the 2020 examination report and medical opinion, the Board finds that an additional VA medical opinion is needed. The case is REMANDED for the following actions: 1. The AOJ should secure any in-service records of mental health treatment and evaluations (mental health jacket) through a specific request and associate them with the claims file. See, e.g., March 2013 written statement (Veteran reported receiving ongoing in-service mental health treatment while stationed at Fort Bragg). It is noted that a generic request for service treatment records will not suffice. All attempts and responses should be documented in the claims file. 2. The AOJ should also secure any outstanding VA treatment records from the Oakland Outpatient Clinic (part of the VA Northern California HCS) dated prior to 2002, if any exist. It does not appear that an attempt to obtain any records (paper or electronic) dated in the other years the Veteran reported receiving treatment was made for records dated prior to 2002. See, e.g., October 1975 written statement (Veteran reported current treatment at Oakland Outpatient Clinic); August 2007 submission from Veteran of copies of some treatment records dated in 1970s and 1980s, including from hospitalizations (November 1977 treatment record in that submission notes mental health treatment at Oakland facility); February 2019 Bd. Hr. Tr. (Veteran testified that he has received treatment through VA since 1974). All attempts and responses should be documented in the claims file. 3. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner other than the December 2014/February 2015/February 2020 VA examiner, if possible, for a clarifying opinion as to the nature and etiology of any current psychiatric disorder that may be present. An additional examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and statements, as well as the December 2014 VA examination report/February 2015 clarifying opinion and February 2020 VA examination report. It should be noted that the Veteran is competent to attest to factual matters of which he has 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. (a) The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorder is not found, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. (1) For each diagnosis identified, the examiner should state whether the disorder preexisted the Veteran's military service. If so, the examiner should state whether there was an increase in the severity during service. If the evidence reflects such an increase, the examiner should indicate whether the increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. (2) For each diagnosis identified other than PTSD that did not preexist service, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's military service, including any circumstances or symptomatology therein. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events and any personal assault he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should address whether there is any relationship between the current disorder and any verified in-service stressor. (b) In providing this opinion, the examiner should address: (1) Whether the Veteran had any behavioral changes indicative of a personal assault in service. (2) The Veteran's reports regarding the onset of his psychiatric symptomatology and the service records outlined below, as well as any additional service records obtained while the case is in remand status. The Veteran has reported that, although he was molested as a child, his current psychiatric problems began following in-service personal assaults leading to a nervous breakdown prior to his discharge. He has indicated that he had ongoing mental health treatment in service. See, e.g., August 2007 written stressor statement from original PTSD claim and February 2020 written stressor statement; March 2013 written statement; May 2015 substantive appeal; February 2019 Bd. Hrg. Tr. In an October 2020 written statement, the Veteran's representative noted that the record reflects that the Veteran performed his duties in a very erratic manner since a unit change and that information supports the occurrence of his claimed 1972 stressor. The service records show that the Veteran reported having a history of frequent trouble sleeping on the March 1971 report of medical history for enlistment, noted by the examiner as NCD (not considered disqualifying). The service records also show the Veteran was reassigned to Fort Bragg in October 1971, changing units during that assignment in July 1972. In addition, the service records dated in 1972 document difficulties he experienced when at Fort Bragg, including documented counseling by officers as early as October 1971, ultimately resulting in the determination that he was to be separated from service pursuant to Army Regulation 635-212, paragraph 6(b)(2) for unsuitability due to character and behavior disorders. See, e.g., March 1972 and August 1972 Article 15 reports, May 1972 treatment record (noted in trouble with unit because of his refusal to wear a helmet), July 1972 psychiatric evaluation memorandum (conducted at request of unit command), August 1972 unsuitability determination documents. The August 1972 separation examination includes an attached report of mental status evaluation that shows normal findings; the corresponding report of medical history shows a reported history of frequent trouble sleeping, depression or excessive worry, nervous trouble, and attempted suicide. The referenced service records are contained in November 1974 and January 2020 claims file entries. (3) The post-service treatment records showing a history of and more recent mental health treatment. See, e.g., VA treatment records from March 2002 and December 2006 (reported history, including SATP note); August 2008 mental health note (reported history and treatment with Dr. J.D.); November 2011 mental health note (Dr. J.D. appointment with diagnoses); May 2013 (initial appointment with Dr. E.H. with reported civilian and military traumatic events and diagnostic impressions); June 14, 2013 (noted Veteran reported several traumas, confirmed that he would focus on childhood sexual abuse experience that occurred when he was seven years old; noted Veteran's denial that one trauma impacted him more significantly than the others); June 28, 2013 (noted that it was likely that Veteran's laconic speech and denial of subsequent emotion when sharing trauma history was a form of avoidance); July 19, 2013 (Veteran described military sexual trauma in greater detail and reported he had not told anyone about it); July 29, 2013 (initial appointment with Dr. N.H.; noted Veteran identified military sexual trauma amongst many traumas that he believes has highest emotional valence). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.