Citation Nr: 21042527 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-53 535A DATE: July 13, 2021 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from November 1979 to December 1982. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for PTSD, depression, and anxiety has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that she has an acquired psychiatric disorder that is the result of military service. The Board remanded this matter for additional development in March 2021. In particular, the Board requested that the RO carefully review all new information and further develop the Veteran's claim as a result of requesting and associating her Social Security Administration (SSA) records with the claims file. This development included, if the RO deemed appropriate, obtaining a new VA examination concerning the etiology of the Veteran's current psychiatric disorder. The Veteran underwent a new VA examination in May 2021. She was diagnosed with generalized anxiety disorder. The examiner then gave a negative opinion that the anxiety disorder was the result of military service. The examiner noted that he was unable to locate any mental health records or reported mental health symptoms in the Veteran's service treatment records (STRs). No other opinions or rationale were provided. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the opinion is inadequate because it relies on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The United States Court of Appeals for Veterans' Claims (the Court) has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The examiner did not address or consider the Veteran's lay statements regarding her in-service mental health symptoms when he rendered his opinion. The matter is REMANDED for the following action: Obtain an addendum VA medical opinion regarding the etiology of the Veteran's acquired psychiatric disorder from a medical professional with appropriate expertise. The claims file must be reviewed, and a notation must be made on the examination report that the claims file was reviewed. Based on a review of the record, and the examination results if necessary: Is it at least as likely as not (an approximate balance of positive and negative evidence) that any diagnosed acquired psychiatric disorder is due to military service? In answering this question, the examiner must address the Veteran's reports of in-service mental health symptoms. In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner should not improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) Please explain in detail any opinion provided and the supporting rationale. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.