Citation Nr: 21042438 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-38 008 DATE: July 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), anxiety disorder, and insomnia disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to July 1969. He appeals a March 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for PTSD. An initial Board of Veterans' Appeals (Board) hearing was held in July 2019; however, the audio recording of the hearing malfunctioned and the Veteran requested to have a second Board hearing, which was held in March 2021. A transcript is of record. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Board has recharacterized the claim on appeal to entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In August 2014, the Veteran received a VA examination to assess the nature and etiology of his psychiatric symptoms. The VA psychologist reviewed the Veteran's record, interviewed the Veteran and determined he did not meet the criteria for a diagnosis of PTSD or any psychiatric disorder other than insomnia disorder. The August 2014 VA examiner noted the Veteran's VA treatment records from 2000 to 2012 contained "no complaint of any mental health issues." Since this examination, however, the Veteran submitted Vet Center treatment records noting psychiatric treatment from June 2000 to August 2001. As such, this August 2014 VA examination and opinion is inadequate for adjudication purposes. The Veteran also submitted a March 2021 private opinion from Dr. T.F. who did not interview the Veteran but reviewed his entire record. Dr. T.F. concluded the Veteran's medical treatment records reflect a diagnosis of PTSD "due to his traumatic stressors from his time in the military." However, the Board finds this not completely accurate. June 2000 Vet Center treatment records note the Veteran's readjustment counseling therapist provided an assessment of PTSD, but did not clinically diagnosis the Veteran with PTSD. Similarly, January 2021 VA treatment records note a "diagnostic impression" of PTSD, social phobia, and tic disorder, but do not formally diagnose the Veteran. Finally, January 2014 VA treatment records reflect the Veteran was diagnosed with PTSD by VA psychologist, T.C.; however, T.C. noted "two life events" as stressors, only one of which related to the Veteran's service and T.C. did not note which of the two stressors led to his PTSD diagnosis. As such, the Board finds the March 2021 Dr. T.F. assessment also inadequate and a remand is required for further development. In March 2021, the Veteran submitted VA treatment records noting a clinical diagnosis of PTSD, major depressive disorder (MDD), and unspecified anxiety disorder. Unfortunately, these records are not on file as VA treatment records have not been updated to the Veteran's file since June 2014. Additionally, the Veteran submitted treatment records from the Newark, New Jersey Vet Center from June 2000 to August 2001, but it is unclear whether these are his complete treatment records as the Veteran reported he lived and received treatment at VA facilities in New Jersey from 1999 to 2012 and these VA treatment records are not on file. See March 2021 Board Hearing Tr. at 13. VA's duty to assist includes assisting the claimant in the procurement of relevant medical records, especially VA medical records. See 38 C.F.R. § 3.159(c). Because records generated by VA facilities, including Vet Centers, are considered constructively in the possession of VA during the consideration of a claim, regardless of whether those records are physically on file, the AOJ must obtain these records. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, on remand, the AOJ should obtain all VA and Vet Center treatment records. Additionally, Dr. T.F. noted in his March 2021 assessment that the Veteran's sister provided a statement corroborating his in-service and post-service experiences. Such statement is not of record. On remand, the AOJ should attempt to obtain his sister's statement from the Veteran. Finally, on remand, the AOJ should attempt to corroborate the Veteran's claimed in-service events. The Veteran consistently claimed throughout the record that while serving at Fort Lewis, Washington from May 1968 to July 1969 with the 2nd squadron, 3rd armored cavalry, he trained the 1st squadron, 18th cavalry for impending service in the Republic of Vietnam. See, e.g., January 2014 VA treatment records; April 2014 Veteran statement; July 2014 VA Form 21-0781s; August 2015 VA examination report; March 2021 Board hearing transcript at 6. During training, the Veteran contends he witnessed a soldier killed by a tank that he had to recover and identify, and witnessed a soldier attempt suicide by throwing a live grenade at his feet, which the Veteran kicked into a sump, grabbed the soldier, and dropped to the ground. See, e.g., June 2000 Vet Center records; July 2000 Vet Center records; July 2014 VA Form 21-0781s; August 2014 VA examination report; March 2021 Board hearing transcript at 6-8. In June 2014, the AOJ requested the Veteran submit specific details of these claimed in-service events. The Veteran submitted numerous VA Form 21-0781s and other supporting documents; however, the record does not reflect the AOJ attempted to verify these stressors. Thus, the Board finds a remand is required to also attempt to verify the Veteran's in-service stressors. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records, to include (a). all psychiatric treatment records from Newark, New Jersey Vet Center from 1999 to April 2012, (b). all potential relevant VA treatment records prior to April 2012, (c). all VA treatment records from May 2014, (d). Dr. Todd Finnerty psychiatric treatment records, and associate them with the claims file. 2. Attempt to obtain the Veteran's sister's statement noted in the March 2021 Dr. T.F. opinion and associate it with the claims file. 3. Attempt to corroborate the Veteran's reported in-service events while serving at Fort Lewis, Washington from May 1968 to July 1969 with the 2nd squadron, 3rd armored cavalry. This includes the Veteran's repeated contention that while training the 1st squadron, 18th cavalry for service in the Republic of Vietnam, he (1) witnessed a soldier killed by a tank who he had to recover and identify, and (2) had a soldier attempt suicide by throwing a live grenade at his feet, which the Veteran kicked into a sump, grabbed the soldier, and dropped to the ground. Verification efforts should include contacting any agency deemed appropriate and any additional action necessary for independent verification of the alleged stressor, including follow-up action requested by the contacted entity, should be accomplished and documented. 4. After the development of #1-3 above is complete, schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorders, to include PTSD, MDD, anxiety disorder, and insomnia disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. For each identified acquired psychiatric disability, provide an opinion with respect to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's acquired psychiatric disability was incurred in or is otherwise related to his time in service, to include the events surrounding his training the 1st squadron, 18th cavalry for service in the Republic of Vietnam. Specifically, that he (1) witnessed a soldier killed by a tank who he had to recover and identify, and (2) had a soldier attempt suicide by throwing a live grenade at his feet. If PTSD is diagnosed, the examiner should identify the specific stressors that led to the condition. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Thereafter, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.