Citation Nr: 21042797 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 18-30 135 DATE: July 14, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and major depression disease, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1966 to April 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the issues were remanded to the Agency of Original Jurisdiction (AOJ) for additional development and they have since returned for further appellate review. 1. Service Connection for Acquired Psychiatric Disorder In the September 2018 Board remand, the RO was instructed to provide the Veteran with a notice as required for PTSD claims based on personal assault. The RO sent the Veteran a development letter in May 2019. However, this notice does not meet the requirements pursuant to 38 C.F.R. § 3.304(f)(5). See Gallegos v. Peake, 22 Vet. App. 329, 335 (2008). Thus, the Board finds that there was no substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the RO was instructed to afford the Veteran a psychiatric examination. A March 2021 VA examination found that the Veteran did not have a current diagnosis for PTSD or any other mental disorder. The examiner opined that a review of the Veteran's claims file does not show a diagnosis for an acquired psychiatric disorder. Id. However, it appears the examiner did not take into consideration the March 2017 private medical opinion by Dr. C.M.Q. who diagnosed the Veteran with generalized anxiety disorder and major depression disease. Dr. C.M.Q. also noted that the Veteran had psychiatric symptoms such as nervousness, anxiety, irritability, and isolation episodes, among others. Id. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record. Accordingly, the issue is expanded as indicated on the title page. Based on the foregoing, a remand is necessary to afford the Veteran another VA examination so that an examiner can also consider the March 2017 private medical opinion by Dr. C.M.Q. 2. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the Veteran's remanded service-connection claim, as he has claimed unemployability as a result of his psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assaults pursuant to 38 C.F.R. § 3.304(f)(5), and allow time for a response. 2. Then, attempt to corroborate the Veteran's in-service stressors based on personal assault, including racial discrimination by officers and other privates due to his difficulty speaking English. If more details are needed, contact the Veteran to request the information. 3. Ask the Veteran to identify all outstanding treatment records relevant to his acquired psychiatric disorder claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be, to include notifying the Veteran of the unavailability of the records. 4. After records development is completed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). The examiner should review the claims file. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must opine whether the evidence of record, including the Veteran's lay statements, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include his report of racial discrimination by officers and other privates due to his difficulty speaking English. In offering all the opinions above, the examiner is asked to consider the March 2017 private medical opinion by Dr. C.M.Q. who diagnosed the Veteran with generalized anxiety disorder and major depression disease, and found that his psychiatric disorders are more likely than not related to his military service. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. (continued on next page) 3. Readjudicate the claims. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.