Citation Nr: 21041533 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 19-33 225 DATE: July 9, 2021 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric condition to include anxiety and depression is remanded. Entitlement to service connection for posttraumatic stress disorder is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Army from February 2004 to February 2007 including service in Iraq from October 2005 to September 2006; and from February 2007 to April 2011. The Veteran's active duty from February 2007 to April 2011 was terminated by a bad conduct discharge. These matters come before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in September 2013 and a Statement of the Case (SOC) was issued in December 2013. In August 2019, the RO found that the December 2013 SOC was not delivered to the Veteran and sent another copy of the SOC. The Veteran perfected an appeal by submitting a timely VA Form 9 in October 2019. The Veteran elected to have a hearing with a Veterans Law Judge. In March 2020, the Veteran submitted private medical treatment records concerning his claim. In response, the RO sent a letter to the Veteran in June 2020 asking for a completed VA Form 21-4142 to obtain the Veteran's treatment records. The RO then issued an SSOC in July 2020 when the Veteran did not submit a completed VA Form 21-4142. In July 2020, both the RO's June 2020 request for a completed VA Form 21-4142 and the July 2020 SSOC were returned as undeliverable, as did letters informing the Veteran that his appeal was certified to the Board and placed on the Board's docket. As there is no evidence of record that either the request for a completed VA Form 21-4142 or the July 2020 SSOC were delivered to the Veteran, a remand is necessary. In October 2020, however, the RO received an updated address from the Veteran. In February 2021, a letter was sent to the Veteran to the new address informing him of the scheduled hearing. The Veteran failed to appear for the hearing and was a "no show." There is no evidence of record that the notice of the hearing, delivered to the Veteran's updated address, was not delivered. He also did not provide any good cause for his absence or request to reschedule the hearing. Therefore, the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.704(d). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). 1. The issue of service connection for headaches is remanded. As discussed above, the issue of service connection for headaches is remanded as the Veteran did not receive the request to complete a VA Form 21-4142 that may be pertinent to the claims nor the July 2020 SSOC. 2. The issue of service connection for an acquired psychiatric condition to include anxiety and depression In addition to not having the opportunity to complete a VA Form 21-4142 and receiving a copy of the July 2020 SSOC, the Board finds that the Veteran is entitled to another VA examination for his claims of service connection for an acquired psychiatric condition to include anxiety and depression; for posttraumatic stress disorder (PTSD); and for tinnitus. The Veteran did not receive a VA examination for his claim of service connection for an acquired psychiatric condition to include anxiety and depression. The Veteran reported that he felt "down, depressed, or hopeless" for a few or several days in October 2007, or within a year of his honorable discharge in February 2007. The Veteran also complained of anxiety and depression in February 2008, about 379 days after his honorable discharge. The Veteran was not diagnosed as having an acquired psychiatric disorder but having alcohol abuse and occupational problems. Private treatment records from a native American clinic from April 2013 to December 2015 show that the Veteran is receiving treatment for depression and PTSD. VA's duty to assist also includes obtaining a medical examination or opinion when such is necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim of service connection for an acquired psychiatric condition to include anxiety and depression, the statutory duty to assist has been triggered, as the Veteran contended that his current depression is causally related to his active service. He has not yet been afforded an examination for this claim/these claims. The Board thus finds that the Veteran should be afforded an appropriate examination with respect to his service connection claim for an acquired psychiatric disorder. 3. The issue of service connection for posttraumatic stress disorder In May 2013, the Veteran was afforded a VA examination for his claims of service connection for PTSD. The VA examiner opined that a diagnosis could not be made without resorting to mere speculation as the examiner determined the Veteran to be not credible, rendering the examination inadequate. See Sizemore v. Principi, 18 Vet. App. 264, 275 (2004) ("To the extent that the examining psychiatrist is expressing an opinion on whether the appellant's claimed in-service stressors have been substantiated, that is a matter for determination by the Board and not a medical matter"); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (It is the responsibility of the Board, not the examiner, "to assess the credibility and weight to be given to evidence"). The Board notes that the Veteran is in receipt of the Combat Action Badge, awarded to soldiers for being present and actively engaging or engaged by the enemy, and performing satisfactorily in accordance with prescribed rules of engagement. The Board also notes that the private treatment records submitted by the Veteran in March 2020 that diagnosed him as having PTSD, does not show the criteria used to make this diagnosis. The medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125(a), which refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM) as the source of criteria for the diagnosis of claimed psychiatric disorders. As there are no adequate medical opinions of record, the Veteran should be afforded an appropriate examination with respect to his claim of service connection for PTSD. 4. The issue of service connection for tinnitus In June 2013, the Veteran underwent a VA examination for service connection for tinnitus. Although the Veteran's examination was for tinnitus only and therefore included no audiograms or any tests for a hearing disability, the examiner stated that no medical opinion could be provided as the Veteran had "normal hearing bilaterally by VA standards from 250 Hz through 8000 Hz." As the VA examiner's opinion is not based on any medical basis, the Board finds it to be effectively conclusory, rendering the examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The matters are REMANDED for the following action: 1. Send the Veteran a copy of the VA Form 21-4142 and afford him the opportunity to submit the completed form. 2. Send the Veteran a copy of the July 2020 SSOC. 3. After taking all appropriate action, readjudicate the claim of service connection for headaches. 4. Schedule the Veteran for appropriate examinations by a VA clinician to determine the nature and etiology of any acquired psychiatric disorders, to include anxiety, depression, and PTSD. The clinician should review the virtual file. The clinician is to address the following: (a.) State whether an acquired psychiatric disorder is currently present. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that an acquired psychiatric disorder, if diagnosed, manifested during or is otherwise caused by the Veteran's period of active service (prior to February 12, 2007) including his service in Iraq in 2005-06.. Rationales for all opinions are to be provided. All pertinent evidence, including both lay and medical, should be considered. The examiner must not make any credibility determinations but may note any factual or medical discrepancies. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the examiner. 5. Schedule the Veteran for appropriate examinations by a VA clinician to determine the nature and etiology of his claimed tinnitus. The clinician should review the virtual file. The clinician is to address whether it is at least as likely as not (50 percent or greater probability) that tinnitus manifested during or is otherwise related to the Veteran's period of active service (prior to February 12, 2007). Rationales for all opinions are to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the examiner. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun, 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.