Citation Nr: 21042846 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 17-35 118 DATE: July 14, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and generalized anxiety disorder (GAD) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from January 1977 to January 1980 and from January 1982 to January 1985. He passed away in December 2019. See Death Certificate received November 2020. The Veteran's wife, the Appellant, has been recognized as the substitute claimant. See Correspondence received April 2020. This matter is before the Board of Veteran's Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection claims for PTSD and MDD. In February 2019, prior to his passing, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A written transcript of that hearing has been prepared and associated with the evidence of record. In August 2019, the Board remanded the claim for development including a new VA examination. The August 2019 remand also broadened and recharacterized the Veteran's claim to include any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); and see also 38C.F.R. §3.159(a)(3). The Veteran passed away in December 2019 before the RO was able to obtain a VA examination of the Veteran. However, the RO obtained a medical opinion in September 2020. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, GAD, and MDD is remanded. Although further delay is regrettable, a remand is necessary to obtain an adequate VA opinion, and to substantially comply with the August 2019 Board remand. The September 2020 VA opinion did not provide all psychiatric disorders for the Veteran during the relevant period, as was requested in the August 2019 Remand. The Board notes that a current disability can be established at any time during the claim period even if the disability resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the examiner must consider the evidence as a whole during the relevant period. The Veteran filed his claim for service connection in March 2015, and the Board noted that he had mental health treatment with a nurse practitioner for MDD and unspecified trauma and stress related disorder (rule out PTSD) around August 2015 to at least July 2017. Additionally, a psychological assessment in June 2016 stated that the Veteran had a GAD, MDD, and substance abuse disorder in remission. See CAPRI received January 2021. The September 2020 examiner did not discuss general anxiety disorder or substantially consider the Veteran's treatment records in determining what the Veteran's mental health diagnoses or current disabilities were during the relevant period. Next the September 2020, VA opinion stated there was no indication in the notes of the actual stressor the Veteran experienced during service. This opinion is generally inconsistent with the evidence. The Board notes that there are several places that the Veteran's description of his in-service stressor is found in the records. The Veteran discussed his in-service stressor during his hearing. See Hearing Transcript received February 2019. He provided some lay statements in the record. See VA 21-0781, Statement in Support of Claim for PTSD received April 2015 and Correspondence received February 2019. Moreover, in June 2019, the Veteran also discussed his in-service stressor during a psychological assessment. See CAPRI received January 2021. In particular, the Veteran stated that in the mid-1980s while serving in Germany, the bodies of victims from the Beirut suicide bombing were flown to his military post. He said he was assigned to remove bodies from containers, and then he had to clean these containers. The bodies were horribly disfigured. He reported nightmares and increased arousal or anxiety. Id. In July 2015, an administrative decision indicated that the unit records from the dates encompassing the traumatic event were not available from the Veteran's specific unit. Therefore, the RO was unable to verify if personnel from the Veteran's unit volunteered for the detail or took part in the detail. See Administrative Decision dated July 2015. Therefore, a new opinion is required to consider the evidence of record as to the Veteran's in-service stressor. Lastly, the Board notes that all opinions were inadequate for failing to consider all the relevant evidence, and for failing to provide a sufficient rationale. Moreover, there was no opinion provided as to MDD or other acquired metal health conditions like GAD. The VA examiner reported as to MDD, that there was not enough information to make a determination as to whether there was a link or nexus to service. However, the rationale was inadequate to explain why the examiner was unable to provide this opinion. In summary, the RO did not ensure that the September 2020 VA examiner considered all available records and did not ensure that the examiner provided an adequate opinion. Thus, the RO did not substantially comply with the remand and another medical opinion is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any records identified cannot be obtained, the Appellant and her representative, if she should obtain one, should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such records. The Appellant should also be offered the option to provide any such records herself. 2. The RO should obtain a new VA opinion from an appropriate medical provider regarding the Veteran's acquired psychiatric disorders to include PTSD, MDD, generalized anxiety disorder, and any others. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing a thorough review of all the available records, the examiner should address the following: a. Identify any and all psychiatric disorder that the Veteran had during the relevant period, to include PTSD, MDD, and GAD. In particular, from the date the Veteran filed his claim until his passing. Please note and discuss that the Veteran had some ongoing treatment from August 2015 to July 2017 documented in the VA treatment records with a psychiatric nurse practitioner, and that in June 2016, the Veteran had a psychological assessment performed by a VA psychologist. b. If a diagnosis of PTSD is appropriate considering the records, opine as to whether it is at least as likely as not that this condition manifested during, or as a result of active military service. Please note, the Veteran described an in-service stressor in the records, but this stressor has not been confirmed due to missing unit records. He stated that in the mid-1980s while serving in Germany, the bodies of victims from the Beirut suicide bombing were flown to his military post. He said he was assigned to remove bodies from containers and then he had to clean these containers. See CAPRI received January 2021, VA 21-0781, Statement in Support of Claim for PTSD received April 2015, Correspondence received February 2019, Hearing Transcript received February 2019, Administrative Decision dated July 2015. c. As to any and all other psychiatric disorders including MDD, GAD and any others, opine as to whether it is as likely as not that this disability manifested during, or as a result of active military service. d. In formulating the above opinions, the examiner must consider and discuss lay statements, testimony, and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue a SSOC, afford the Appellant an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.