Citation Nr: 21042674 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-05 694 DATE: July 13, 2021 REMANDED The appeal as to the claim of entitlement to service connection for a non-posttraumatic stress disorder (PTSD) acquired psychiatric disorder, to include dysthymic disorder and depressive disorder, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 1980 to October 1980, and from January 1991 to October 1991. He also had additional inactive service. His service was under honorable conditions. This matter is on appeal from a February 2015 rating decision. In November 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the record. This VLJ has since become unavailable to participate in the appeal. In February 2020, the Board sent a letter to the Veteran providing him with an opportunity to present testimony at a new hearing before a different VLJ. The Veteran responded that he did not wish to appear at another Board hearing and asked the Board to consider his case on the evidence of record. The Board notes that the issue of a claim to reopen a claim of entitlement to service connection for PTSD is not on appeal. In a prior final June 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection PTSD. The Veteran did not perfect an appeal. In a 2014 claim, the Veteran asserted entitlement to service connection for PTSD and dysthymia. In a February 2015 rating decision, the RO denied service connection for dysthymia and a depressive disorder and found there was no new and material evidence to reopen the PTSD claim. In an August 2015 notice of disagreement, the Veteran specifically limited his claim to depression/dysthymia. Similarly, the statement of the case only addressed service connection for dysthymia/depression. Finally, this was the only issue addressed at the 2018 Board hearing. Accordingly, the Board finds that this is the only issue on appeal. Entitlement to service connection for a non-PTSD acquired psychiatric disorder, to include dysthymic disorder and depressive disorder. The Veteran contends that his current depression is due to an in-service incident. In this regard, he has consistently reported that while serving as an military policeman (MP) in the 438th in Saudi Arabia, in March 1991, he was involved in a fatality investigation for PFC Bridges. Specifically, he reported that he saw PFC Bridges being thrown from the back of a truck and impaled, which resulted in her death. Since the incident, the Veteran has reported nightmares, difficulty sleeping, and symptoms of depression. Available service personnel records show the Veteran served in the 428th MP Co as an MP. In this regard, in an April 2010 response, the Defense Personnel Records Information System (DPRIS) confirmed the Veteran's in-service stressor, finding that on March 13, 1991, PFC Bridges was killed in a motor vehicle accident that involved an investigation by the 438th MP Co. Service treatment records are negative for complaints of, treatment for, or a diagnosis of depression or any other acquired psychiatric disorder. A June 1991 record shows the Veteran was choked during an assault by a fellow serviceman. Post-service VA outpatient treatment records dated in November 1998, December 1998, and January 1999 note that the Veteran was scheduled for a PTSD screening, however, he failed to appear. An October 2006 VA outpatient treatment records indicates a diagnosis of depression. A November 2006 VA outpatient treatment record notes that Veteran sought treatment (therapy). At the time, he reported that he experienced ongoing nightmares about his service as an MP. Specifically, he reported that while serving in Saudi Arabia, he investigated the fatality of a woman who was impaled when she was thrown from a vehicle. The Veteran further reported that in addition to nightmares, he experienced symptoms of hypervigilance, intrusive thoughts, difficulty sleeping, and irritability. The examiner assessed depressive disorder and medication to treat his symptoms of difficulty sleeping was prescribed. Subsequent VA outpatient treatment records dated in November 2006 through 2009 demonstrate treatment for, and diagnoses of depression. The Veteran underwent a VA examination in May 2010, during which insomnia and alcohol abuse were diagnosed. The Veteran reported that he felt numb. He reported ongoing nightmares regarding his involvement in the fatality investigation as an MP with respect to the death of PFC Bridges due to a motor vehicle accident in Saudi Arabia. He also reported that he got into trouble thereafter to include three Article 15's. The Veteran underwent a VA examination in January 2011, during which insomnia and dysthymic disorder were diagnosed. The Veteran reported that counseling and medication helped him manage his depression symptoms. He reiterated his nightmares regarding the death of PFC Bridges due to a motor vehicle accident while serving in Saudi Arabia as an MP performing fatality investigations. The examiner noted that the service treatment records were negative for treatment for insomnia and dysthymic disorder, concluding that the Veteran's current disorders were not related to his active service. VA outpatient treatment records dated in 2011 through July 2014 note treatment for depressions, to include difficulty sleeping, nightmares, and intrusive thoughts. The Veteran underwent a VA examination in February 2015, during which depression was diagnosed. Upon examination, the examiner found that the Veteran's current depression was not related to his active service, to include the stressor of having been choked by a superior. In providing the opinion, the examiner noted that the Veteran did not seek treatment for depression until 15 years following discharge from service. He concluded that the current depression was likely due to non-military events and/or the Veteran's sleep disorder. In an October 2020 VA opinion, the examiner reviewed the record and noted that the Veteran was diagnosed with dysthymic disorder, depressive disorder, and insomnia during VA examinations in 2010 and 2015. The examiner noted that nightmares were associated with the Veteran's time in Saudi Arabia on examination in 2010, however, he noted that the Veteran was not diagnosed with a trauma disorder at any time during any of the VA examinations. The examiner concluded that the record does not substantiate the Veteran's claim. In an October 2020 addendum VA opinion, the examiner noted that the February 2015 VA examination noted the Veteran's stressor of working as a fatality investigator as an MP in Saudi Arabia; however, the examiner found that the criteria for a diagnosis of PTSD were not met. The Board finds the VA opinions of record inadequate to adjudicate the claim, as the examiners failed to consider the Veteran's report of ongoing symptoms of depression, to include nightmares and difficulty sleeping since his active service in Saudi Arabia. Moreover, while the examiners continued to note that the criteria for PTSD have not been met, the Veteran has been diagnosed with dysthymic disorder and depression, and he receives ongoing treatment for the disorders since October 2006. Further, the VA examiners failed to consider the Veteran's confirmed stressor in the context of his diagnoses of dysthymic disorder and depression. As above, DPRIS has confirmed the Veteran's report that while serving as an MP in the 438th in Saudi Arabia, in March 1991, he was involved in a fatality investigation for PFC Bridges. Specifically, he reported that he saw PFC Bridges being thrown from the back of a truck and impaled, resulting in her death. Accordingly, a remand is required to obtain an adequate VA etiological opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, record shows that the Veteran received treatment at the Louisville VA Medical Center (VAMC) shortly after separation from service. The RO sent one request in April 2010 requesting records from the Louisville VAMC for the period of approximately January 1991 to February 1998. The Louisville VAMC provided records covering December 1993 to December 2000. The RO thus concluded that records from the Louisville VAMC prior to December 1993 were unavailable. However, a June 2010 VA treatment record notes that the Veteran was provided a list of all his VA appointments going back to 1992. In July 2020, November 2020, and April 2021, the RO requested the aforementioned records; however, such records were not obtained and associated with the record. Accordingly, if the AOJ does not obtain the records, it must obtain a negative response and associate it with the record. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2020). Next, during the January 2011 VA mental health examination, the Veteran reported that he received ongoing treatment from A.J., M.D., in Newburg, for psychiatric medication management. Likewise, VA outpatient mental health treatment records dated in August 2015 note that the Veteran received in-patient treatment at Baptist Hospital East in 1997. The claims file does not contain any records from Baptist Hospital East or A,J., M.D., nor has there been any effort to obtain these records. Thus, these private treatment records must be obtained and associated with the record. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(1). Finally, during the May 2010 VA examination, the Veteran noted the PFC Bridges incident he investigated while in service. He further noted that he got into trouble thereafter, to include three Article 15's. In this regard, the file does not contain the Veteran's complete service personnel records. On remand, the complete service personnel records must be obtained and associated with the record. The matters is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include complete service personnel records, VA outpatient treatment records from January 1991 through December 1993, and outpatient treatment records from April 2021, to the present. Obtain private treatment records dated in 1997 from Baptist Hospital East, as well as complete records from A.J., M.D. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the dysthymic and depression disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current dysthymic and/or depression disorders are etiologically related to the Veteran's active service? In providing the opinion, the examiner must discuss the contemporaneous VA treatment records and VA examination reports that note diagnoses of dysthymic disorder and depressive disorder. The examiner must also comment on the Veteran's conceded stressor. Specifically, while serving as an MP in the 438th in Saudi Arabia, in March 1991, the Veteran was involved in a fatality investigation for PFC Bridges. He reported that he saw PFC Bridges being thrown from the back of a truck and impaled which resulted in her death. The examiner must also comment on the Veteran's assertion, that since the in-service incident, he has experienced nightmares, difficulty sleeping, and symptoms of depression. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page) Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. Then, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.