Citation Nr: 21042373 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-05 749 DATE: July 12, 2021 REMANDED Entitlement to service connection for a psychiatric disability for accrued benefits purposes is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to December 1977. The Veteran died in September 2012. The Appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant testified before the undersigned Veterans Law Judge at a hearing in April 2019. A transcript of the hearing is of record. In October 2019, September 2020, and February 2021 the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to service connection for a psychiatric disability for accrued benefits purposes is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to service connection for a psychiatric disability for accrued benefits purposes. The Appellant asserts that the Veteran had a psychiatric disability that is directly related to service or secondary to service-connected hearing disabilities. VA most recently obtained a VA medical opinion in January 2020. The Board finds the January 2020 VA examination to be incomplete for rating purposes and further examination is required. The January 2020 VA examiner opined that, based upon all the available evidence and thorough review of the Veteran's file, it was the examiner's carefully considered opinion that it was less likely as not (less than 50 percent probability) that any psychiatric disability was etiologically related to service or any incident of service. The service medical and personnel records did not show any evaluation or treatment of any psychological issues or problems, and did not show any of the claimed incidents or stressors. The examiner opined that a connection could not be made between any psychiatric disability and service or any incident of service without resorting to conjecture. The January 2020 VA examiner further opined that, based upon all the available evidence and thorough review of the claims file, it was the examiner's carefully considered opinion that it was less likely as not (less than 50 percent probability) that any psychiatric disability manifested within one year following separation from service. Evidence from the claims file documented that a psychiatric disability, specifically depression and heroin use disorder, started roughly 10 years after separation from active duty. The January 2020 VA examiner also opined that it was less likely than not (less than 50 percent probability) that any psychiatric disability was caused by a service-connected disability. The examiner explained that while it was documented that hearing loss, which pre-existed at the time of enlistment, was frustrating for the Veteran, the Veteran did not cite this as the cause of a psychiatric disability. The onset of depression, according to the Veteran, was roughly 10 years after service separation. February 1996 records indicated that the Veteran thought that the first time he was depressed was in approximately 1987 when a girl he loved left him because of fear he could have tuberculosis. When asked why he thought he used alcohol and drugs so much over the years, the Veteran referred to the girlfriend he had a special feeling for and also to a back injury in 1984. It was not possible to associate causation of any psychiatric disability to any service-connected disability without resorting to conjecture. The January 2020 examiner stated that it was less likely as not (less than 50 percent probability) that any psychiatric disability was aggravated (increased in severity beyond the natural progress of the disorder) by a service-connected disability. The Veteran's record documented that he abused alcohol starting in adolescence. The Veteran's record documented that roughly ten years after service separation, he developed depression due to the dissolution of a relationship with a woman for whom he had strong feelings of attachment. He struggled with alcohol and heroin abuse for much of his adult life. While it was documented that the Veteran admitted to feeling frustrated by hearing loss, he did not report that he associated that service-connected disability with his depression. It is not possible to associate aggravation of any psychiatric disability to a service-connected disability without resorting to conjecture. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. The examiner provided a negative etiology opinion based on the fact that the Veteran did not complain of and was not diagnosed with a psychiatric disability during active duty service or for years after service. As the January 2020 VA examiner relied on the absence of symptoms or treatment in service for the negative opinions concerning the claimed disability, the opinion is incomplete. Accordingly, the Board finds January 2020 VA examination report to be incomplete for rating purposes. Additionally, in light of the evidence and arguments of record, the Board finds that additional development is necessary prior to adjudication of the claim. An opinion, report, or other evidence from the appropriate records depositories is needed to address the issue of whether the Veteran witnessed two servicemen pass away in a car accident while in-service in 1975. To satisfy VA's duty to assist, the RO should further develop the claim by seeking an additional response from the appropriate records depositories. Accordingly, because the Veteran's psychiatric disability may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran's psychiatric disabilities and service should be obtained. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for the cause of the Veteran's death is remanded. The Board notes that the Appellant's claim for accrued benefits based on a claim for service-connection for a psychiatric disability has been remanded. As the claim for accrued benefits could affect the claim for service connection for the cause of the Veteran's death, the Board finds that the claims are inextricably intertwined. Therefore, remand is required. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact National Personnel Records Center (NPRC), or any other appropriate repository or service department research facility and request an opinion as to whether it is at least as likely as not that the Veteran witnessed two servicemen (named Johnson and Helinsky) pass away in a car accident in 1975, while the Veteran was on active duty. A copy of any requests sent and any reply, to include any negative reply, should be associated with the claims file. If the event is not verified, an official determination so indicating should be entered into the record. 2. Contact the Appellant and request that she provide information as to treatment for all the claimed disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e). 3. Obtain a medical opinion concerning the etiology of the claimed psychiatric condition. The examiner must review all pertinent records associated with the claims file, including this Remand, and indicate review of the file in the report. The examiner should provide a full multiaxial diagnosis of every psychiatric disability found. The examiner should reconcile that diagnosis with previous diagnoses of record. For each diagnosed psychiatric disability, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disability is etiologically related to active service or any event, disease, or injury during service, including whether a psychiatric condition (1) began during active service or is related to any event, injury, or disease during service, (2) manifested within one year after separation from service, (3) was noted during service with continuity of the same symptomatology since service, (4) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include hearing loss and tinnitus, or (5) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include hearing loss and tinnitus. The examiner should address the lay statements of record and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and must not be based solely on a lack of an in-service record of the claimed disability. 4. Then, obtain a VA medical opinion with regard to the disabilities which caused or contributed to the Veteran's death, to include multiple blunt force injuries as a result of being struck by a motor vehicle. The examiner must review all pertinent records associated with the claims file, including April 2019 hearing testimony, and indicate review of the file in the examination report. The examiner should address the Appellant's lay statements, including the hearing testimony of record, regarding the Veteran's cause of death and service. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's causes of death are due to, related to, caused by, or aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. A clearly stated rationale for each opinion offered must be provided and must not be based solely on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.