Citation Nr: 21040567 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 13-12 028 DATE: July 6, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder not otherwise specified (NOS), and adjustment disorder with anxiety and depression, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1981 to June 1984 and May 1988 to August 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing. Transcripts of these hearings are of record. In March 2021, the Veteran was notified that the VLJ who held his September 2013 hearing was no longer employed by the Board. The Veteran did not respond to the offer for another hearing. 38 C.F.R. § 20.604. The Board remanded these matters in April 2014, October 2019, and October 2020 for additional development. Unfortunately, the Board is not satisfied that there was substantial compliance with its prior remand instructions; therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder NOS, and adjustment disorder with anxiety and depression, is remanded. As an initial matter, the Board notes that the Veteran originally filed a claim for entitlement to service connection for PTSD. However, during the pendency of this appeal, the Veteran has been diagnosed with depression NOS and adjustment disorder with anxiety and depression. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a psychiatric disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In light of the Court's holding in Clemons, the Board has expanded the scope of the Veteran's service connection claim to include all currently-diagnosed acquired psychiatric disorders. The Veteran seeks service connection for an acquired psychiatric disorder. In his statements in support of his claim, the Veteran asserted that in October and/or the winter of 1983 he was in a motor vehicle accident (MVA) after leaving a small U.S. Army military installation called Garlstedt outside of Bremerhaven in Germany, which caused his acquired psychiatric disorder. He testified during1 his September 2013 Board hearing that he was initially taken to a small clinic in Garlstedt and then a larger hospital in Bremerhaven for medical treatment. April 2010 VA initial evaluation records listed a past psychiatric history in a prior fitness for duty evaluations that the Veteran underwent in applications for working for a sheriff's department in 1997 and a police department in 1999. These records are not associated with the claims file. On remand, the RO should obtain information and authorization in order to associate these evaluations with the record. In a request for information to the Defense Personnel Records Information System (DPRIS) dated November 5, 2010, the RO indicated that the Veteran's MVA occurred when the Veteran's truck was leaving a small base outside of Bremerhaven called "Goldslout." The Veteran, however, indicated that the MVA occurred after leaving a small post called Garlstedt in his supporting statements. The Board's April 2014 remand instructed the RO to contact the National Personnel Records Center (NPRC) and the Records Management Center (RMC) to request in-patient clinical records for the Veteran from the U.S. Army Hospital in Bremerhaven, Germany from 1983 to 1984. The Veteran, however, did not specify that he went to the U.S. Army hospital in Bremerhaven, and the remand additionally did not instruct to request medical records from medical clinics in Garlstedt, where the Veteran mentioned he was initially treated. Additionally, the RO did not contact the RMC. Furthermore, the remand instructed the RO to contact the U.S. Army Crime Records Center, U.S. Army Criminal Investigation Command (Criminal Investigation Division (CID)) and local police authorities (Polizei) for information regarding the Veteran's involvement in an MVA in and around Frankfurt, Germany, from January 1983 to December 1984. These instructions were erroneous because the Veteran alleged that his MVA occurred outside of Garlstedt and Bramerhaven, which are hundreds of miles away from Frankfurt. Additionally, the RO did not contact the Polizei. The Board's October 2019 remand continued to instruct the RO to seek information regarding the Veteran's involvement in an MVA in and around Frankfurt, Germany from January 1983 to December 1984 from the U.S. Army Crime Records Center, U.S. Army Criminal Investigation Command (Criminal Investigation Division (CID)) and from local police authorities. The RO did not contact local police authorities, and when the RO did seek information from the U.S. Army Criminal Investigation Command, it listed the date of the MVA as January 1, 1983. As such, the Board must remand this matter for additional development, specifically contacting the appropriate authorities with the correct information regarding the location of the alleged MVA and subsequent medical treatment. See Stegall, 11 Vet. App. at 268. Furthermore, the record reflects that only the Veteran's service treatment records (STRs) from his second period of service are associated with the claims file. His STRs from his first period of service, when the MVA took place, from June 1981 to June 1984 are not of record. Another attempt to obtain the Veteran's STRs for his first period of service as well as his personal file should be made on remand. The Board's October 2020 remand instructed a VA examiner to describe all the diagnoses of record related to the Veteran's acquired psychiatric disorder, and to opine for each disorder if it was at least as likely as not that the diagnosed psychiatric disorder was etiologically related to the Veteran's active duty service. The February 2021 VA examiner failed to list the diagnosis of PTSD, which was diagnosed in September 2013 VA treatment records. The VA examiner additionally indicated that the Veteran was first diagnosed with depression in his first PTSD disability benefits questionnaire (DBQ) in 2016 based on a records review and without a direct interview. However, the Veteran's first PTSD DBQ was in 2012, and he was first diagnosed with depression in May 2010 VA treatment records with a direct interview. Furthermore, the VA examiner did not opine if the Veteran's depression was at least as likely as not etiologically related to his active duty service. When the VA undertakes to provide a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 2 Vet. App. 303 (2007). The VA examiner based his opinion on the inaccurate factual premises that the record did not contain a PTSD diagnosis and that that Veteran was first diagnosed with depression in his first PTSD DBQ in 2016 based on a records review and without a direct interview. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Furthermore, the VA examiner did not opine if the Veteran's depression was at least as likely as not etiologically related to his active duty service. Accordingly, another remand is required to complete the requested development. The matter is REMANDED for the following actions: 1. 1.Contact the Veteran and request that the Veteran identify and provide authorization for VA to obtain the fitness for duty evaluations that the Veteran underwent in his applications for working for a sheriff's department in 1997 and a police department in 1999 as indicated in the April 2010 VA treatment records. If the Veteran responds, perform the necessary steps to obtain the evaluations. 2. 2. Make all attempt necessary to associate the Veteran's service treatment records from his first period of active service from June 1981 to June 1984 with the claims file, as well as his entire personal file. The Veteran and his representative should be advised of all attempts to obtain them. 3. 3. Contact the Defense Personnel Records Information System (DPRIS) and request that research be conducted to verify the Veteran's MVA outside of Garlstedt, Germany and Bramerhaven, Germany and his subsequent medical treatment in a clinic, including but not limited to a U.S. Army clinic, in Garlstedt, Germany and a hospital, including but not limited to a U.S. Army hospital, in Bremerhaven, Germany from September 1983 to February 1894. 4. 4. Contact all appropriate agencies, to include the Records Management Center (RMC), to request in-patient clinical records for the Veteran from a clinic, including but not limited to a U.S. Army clinic, in Garlstedt, Germany and a hospital, including but not limited to a U.S. Army hospital, in Bremerhaven, Germany from September 1983 to February 1984. 5. 5. Contact the U.S. Army Crime Records Center, U.S. Army Criminal Investigation Command (Criminal Investigation Division (CID)) and local police authorities (Polizei) to request that research be conducted to verify the Veteran's MVA outside of Garlstedt, Germany and Bremerhaven, Germany from September 1983 to February 1894. 6. 6. Obtain any outstanding pertinent treatment records for the Veteran's acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder not otherwise specified (NOS), and adjustment disorder with anxiety and depression, that are not currently of record. 7. 7. Obtain an addendum opinion by an appropriately qualified clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder. The respective examiner must review the claims file in its entirety, including this REMAND, and must note that review in the examination report. Thereafter, the respective examiner should provide a detailed medical opinion addressing the following: (a.) Set forth all currently-diagnosed acquired psychiatric disorders, including those diagnosed during the pendency of the appeal, even if currently resolved, including but not limited to PTSD, depressive disorder NOS, and adjustment disorder with anxiety and depression. (b.) If the examiner finds that a diagnosis of PTSD is warranted, is it at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is related to his claimed in-service stressor, or otherwise related to any other in-service event? (c.) Is it at least as likely as not (50 percent or greater probability) that any other currently-diagnosed psychiatric disorder, including but not limited to depressive disorder NOS and adjustment disorder with anxiety and depression, was incurred in or caused by an in-service injury, illness, or event? The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the examiner's report reconcile the evidence of record, to include the Veteran's statements, the Veteran's mother's August 2013 statement, service treatment records, post-service medical records, and any other pertinent evidence of record. The examiner is advised that the Veteran is competent to report his medical history and symptoms, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment for the given disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 8. 8. Readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.