Citation Nr: 21031646 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-20 617 DATE: May 24, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active military service from November 1986 to April 1987 and from January 1988 to September 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied the issue on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's September 2019 decision and remanding the matter for readjudication. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he has an acquired psychiatric disorder, to include personality disorder and depression, due to traumatic events during active service. In an August 2017 statement accompanying his claim for compensation, the Veteran asserted that he was treated and diagnosed with depression at the VA medical center (VAMC) in Phoenix, Arizona. The Veteran's service treatment records (STRs) reveal that the Veteran received extensive mental health treatment, to include in-patient hospitalization, for a self-reported suicide attempt, suicidal ideation, depression, and behavioral problems. The Veteran's in-service mental health diagnosis included adjustment disorder with depressed mood and a suicide attempt. In an April 1988 treatment note, the Veteran reported that he did not want to leave the military. However, in May 1988, it was determined that the Veteran was not fit for overseas and military life and he was medically evacuated to his home state, where his family resided. Treatment records at the Phoenix VAMC note that the Veteran presented for mental health treatment with reports of depression and withdrawal from others in February 2013. He reported encountering discrimination and being unable to find a job. He worked hard to overcome drug addiction and family problems. The Veteran felt depressed and irritable with lack of interest, energy, and motivation for the past few weeks. He reported nightmares, low appetite, crying spells, panic attacks, feeling helpless, hopeless, and lonely. Stressors included financial problems, being unable to find a job, and being unable to see his daughter. The Veteran had a treatment of Lithium during active duty, noting it used to calm him down and put him to sleep. He also had a history of suicidal behavior by trying to hang himself 10 years prior. He reported doing crack cocaine and alcohol. He described his childhood as crappy, with a history of sexual abuse at 6 years old. The VA clinician assessed depressive disorder not otherwise specified (NOS). The Veteran was afforded a VA mental disorders examination in November 2017. The examiner reviewed the Veteran's VA medical treatment records, service records, and conducted a clinical interview of the Veteran. The Veteran also completed psychological testing. The examiner stated that the Veteran's responses to psychological testing resulted in an Invalid Profile. Specifically, the Veteran's responses were similar to individuals exaggerating symptoms of psychopathology or possible malingering. Consequently, the examiner was unable to render any DSM-5 mental health diagnoses. However, the VA examiner did not address the significance of the Veteran's February 2013 VA diagnosis of a depressive disorder NOS, or the significance of the Veteran's treatment for psychiatric problems during active service. Based on the foregoing, and in order to afford the Veteran every possible consideration, the Board finds that a remand for a new VA examination is warranted. In this regard, the Board notes that November 2017 VA examiner noted that the Veteran's responses were similar to individuals exaggerating symptoms of psychopathology or possible malingering. VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Veteran is advised to appear and participate in any scheduled VA examination as failure to do so may result in denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 The matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran, and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination for his claimed acquired psychiatric disorder. The examiner must review the claims file. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner is requested to note all acquired psychiatric disorders that the Veteran has had since he filed his claim for service connection for an acquired psychiatric disorder in 2017, even if he no longer has any of these disorders. For each diagnosed acquired psychiatric disorder, the examiner is requested to opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disorder had its onset in, or is otherwise related to, the Veteran's active duty service, to include in-service psychiatric treatment and hospitalization. In providing the requested opinion, the examiner is asked to address the significance of the Veteran's February 2013 VA diagnosis of a depressive disorder NOS. If it is the examiner's opinion that the above-referenced psychiatric diagnose was rendered in error, the examiner should explain why this is so. A complete medical rationale for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, the examiner is requested to provide complete explanations of why this is so. In so doing, the examiner should explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether the limits of current medical knowledge have been exhausted in providing an answer to that particular question. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.