Citation Nr: 21032232 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-09 421 DATE: May 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, including anxiety disorder, is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired psychiatric disorder, including anxiety disorder, began during the Veteran's active military service or is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for an acquired psychiatric disorder, including for anxiety disorder. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July to October 2007, and from November 2009 to December 2010. His DD Form 214 shows he was in combat. This appeal to the Board of Veterans' Appeals (Board) is from a March 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded this claim back to the RO for further development and consideration including especially to reschedule the Veteran's VA examination since a medical opinion was needed to assist in determining whether he has a mental disorder of some sort owing to his service in the military, including when considering his combat experiences. He had missed a scheduled July 2017 VA examination and had not provided good cause explanation for his absence. But his representative since had provided argument as to why another scheduling of the examination was warranted, so the Board remanded the claim to reschedule the examination. The Veteran again failed to show for his VA examination, however, and again did not provide any justifiable reason or good cause explanation for his absence. So, the claim was returned to the Board but, in December 2019, the Board again remanded the claim this time, however, to ask the Veteran to complete another VA Form 21-4142 for any physician or facility that had provided mental health treatment. To this end, the RO (Agency of Original Jurisdiction (AOJ)) sent him another VA Form 21-4142, but he did not provide all necessary information on it. And even after being provided this form again, he only submitted information for a VA facility and not the requested private provider. Thus, there has been the required compliance certainly acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has mental illness because of his military service, including especially owing to his time in combat. The first thing worth pointing out is that the United States Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record in this appeal shows a diagnosis of anxiety disorder, but, in keeping with the holding in Clemons, the Board is recharacterizing the claim more broadly as for an acquired psychiatric disorder, so inclusive of, but not limited to, anxiety disorder. In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Moreover, in Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012), the Federal Circuit Court held that the combat presumption contained in 38 U.S.C. § 1154(b) [and by extension in the implementing VA regulation, 38 C.F.R. § 3.304(d)] not only applied to a combat injury, but also to the consequences of that injury, at least in service. See Reeves, 682 F.3d at 999 (holding that the Board was required to apply the § 1154(b) presumption to the Veteran's claimed acoustic trauma during service and to the separate question of whether he suffered permanent hearing loss while on active duty). According to the holding in Reeves and that line of precedent cases, because the injury in question is alleged to have occurred in combat, there does not have to be documentation of it in the service treatment records (STRs) (indeed, this is not considered to be a reasonable expectation since injuries sustained in combat often are not or, in fact, cannot be reported because of the very nature of the situation, i.e., hostile environment). Thus, as held in Reeves, in this circumstance a Veteran would then only have to show that the disability he incurred in service was a chronic condition that persisted in the years following active duty. This basically establishes that the injury in service resulted in permanent disability. See generally Reeves. When a disease is first diagnosed after service, service connection is still permissible for that condition if the evidence, including that pertinent to service, shows it was incurred in service. 38 C.F.R. § 3.303(d). According to 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Turning now to the relevant evidence in this case at hand, an April 2013 VA treatment note indicates the Veteran was being treated for anxiety and that medication had been prescribed, but he could not remember the name of the medication or dosage. During a May 2013 VA examination for initial evaluation of residuals of traumatic brain injury (TBI), the VA examiner noted the Veteran had a history of anxiety disorder. In a June 2013 VA neuropsychology note for his TBI claim, he indicated that he had experienced social anxiety since returning from his deployment in November 2010. He indicated that he had been treated by a civilian psychiatrist every three months since March 2013 and that medication (Lexapro) had been prescribed for his anxiety. He additionally indicated that he was not being treated for his social anxiety at a VA facility. As part of the duty to assist him in substantiating his claim, VA scheduled the Veteran for a VA mental status evaluation. However, as already alluded to, he failed to appear for the examination that initially was scheduled for in July 2017 without providing any good cause explanation or justifiable reason for his absence. Nonetheless, after receiving a request to reschedule the examination in argument that his representative presented, the Board remanded this claim to reschedule the examination, but the Veteran again failed to appear for the examination that was rescheduled for in April 2019 and he again did not provide any good cause explanation or justifiable reason for his absence. Additionally, as also already alluded to, VA requested that he complete and return an authorization form to allow the agency to obtain his confidential private medical records (VA Form 21-4142). An initial request was sent in January 2015 and an additional one in January 2020. He returned the form in August 2020; however, he only listed a VA Hospital and did not include his private treatment provider information. VA obtained all his potentially relevant VA records but is unable to obtain any private records since he did not provide the required level of information. See 38 C.F.R. § 3.159(c)(1). While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a concomitant duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App.190 (1991). VA's duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). In fact, most recently in Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019), the Court reaffirmed that the duty to assist is not a one-way street; the Veteran must cooperate with the development and adjudication of his claim. Therefore, in accordance with the applicable VA regulation, when, as here, the Veteran does not appear for a scheduled examination in conjunction with an original claim or submit authorization to obtain pertinent private treatment records, the claim will be evaluated based on the evidence already of record. 38 C.F.R. § 3.655(b) The Board finds that the preponderance of this available evidence is against the claim, not instead supportive of it or even in relative balance (equipoise). The available medical records do not contain a clear diagnosis of anxiety disorder. But, even if the Board were to conclude the Veteran has an anxiety disorder, the claims file is devoid of a competent, credible, and therefore ultimately probative medical opinion attributing his purported anxiety disorder to his service. The Board acknowledges the Veteran's personal belief that his purported anxiety disorder is the result of his service, especially since he claims to only have experienced social anxiety since returning from his deployment in November 2010. See, e.g., August 2020 Statement in Support of Claim. He is competent to attest to matters of which he has first-hand knowledge, including experiencing feelings of anxiety. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, he is not competent to diagnose an acquired psychiatric disorder, including an anxiety disorder, or to determine the etiology of his diagnosed psychiatric disorder or to ascribe certain symptoms to a particular diagnosis. This is beyond his lay competence. 38 C.F.R. § 3.159 (a)(1) and (a)(2); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining this is a fact-specific, so case-by-case, determination that is dependent on the type of condition being claimed in terms of whether complex or, instead, simple). VA has tried to have the Veteran examined to obtain the needed medical opinion but, as explained, that twice has been to no avail. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4). Moreover, VA twice as attempted to obtained needed authorization from him to obtain potentially relevant private treatment records, but that, too, has been to no avail. The unfortunate consequence is that the preponderance of the available evidence is against this claim of entitlement to service connection for an acquired psychiatric disorder, inclusive of anxiety disorder. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.