Citation Nr: 22008070 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 13-33 664 DATE: February 11, 2022 REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 Notification Letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A Board hearing was conducted via video conference. A transcript of this hearing is contained within the electronic claims file. In a December 2017 Decision, the Board remanded this claim so that the agency of original jurisdiction (AOJ) could obtain records from the Social Security Administration (SSA); those records were obtained in January 2018. In March 2019, the claim again was remanded so that the AOJ could obtain the Veteran's complete service personnel record and obtain addendum medical opinions addressing whether the Veteran's psychiatric condition either preexisted service or was caused by service. That opinion was obtained in January 2020. In September 2020, the Board denied this claim. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a June 3, 2021, Joint Motion for Remand (JMR). The Parties agreed that the Board err when it stated that the Veteran did not experience mental health treatment or receive treatment for any such symptoms while in service, overlooking service treatment record (STR) entries and the Veteran's various lay statements to the contrary. By a July 6, 2021, Order, the CAVC adopted the Parties' JMR and vacated the Board's September 2020 Decision, remanding this claim back for appellate consideration. The Veterans Law Judge (VLJ) that conducted the Veteran's hearing no longer is employed by the Board. In December 2021, the Board sent to the Veteran a letter informing him that he had the option to have another hearing in front of a different VLJ or for the Board to proceed with adjudication. The letter indicated that failure to respond within thirty days would result in the latter. As of the date of this Decision, the Veteran has not replied. Thus, the Board may proceed, satisfied that due process has been respected. See 38 U.S.C. § 7102(a); 38 C.F.R. § 20.604. Although prior remand directives have been fulfilled, remand regrettably again is required. Throughout this appeal, the Veteran offers, and the record raises two theories of entitlement to benefits. The Veteran indicates that his psychiatric condition was preexisting and aggravated by service, see Nov. 15, 2011, VA Form 21-526, and, alternatively, that it began during service due to the stress of his duties and being singled out by his supervisors. May 27, 2015, VA Form 646; Dec. 11, 2012, Notice of Disagreement (NOD). Responding to the latter theory, the January 2020 VA examiner stated the following: He was not diagnosed with a mental disorder in service. His "nervousness" noted in STRs on one visit could have been related to his alcohol use and/or his perceived mistreatment by sergeants. According to [V]eteran's report, his main complaints (concentration deficits and panic attacks) began around 2007 or 2008, many years after his active duty service ended. His symptoms were not described as being temporally or thematically related to his military service, and so it is less likely than not that his anxiety was incurred in or caused by military service. The Veteran's SSA records contain a March 2012 Comprehensive Mental Status Evaluation with Memory Testing performed by Dr. E.H. In that report, the Veteran states that he has never been hospitalized for a psychiatric condition but that he "saw a counselor at Gulf Coast Mental Health Center in the late 1990s after being laid off." VA's duty to assist includes assisting a claimant in the procurement of relevant private treatment records. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). The CAVC has held that "reasonable efforts" under 38 C.F.R. § 3.159(c) generally consists of "an initial request for the records and, if the records are not received, at least one followup request." McKinney v. McDonald, 28 Vet. App. 15, 35 (2016). If, however, VA is unable to obtain those records after making reasonable attempts, it must provide notice of that fact to the claimant; such notice must include that it is the ultimate responsibility of the claimant to obtain the records and a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits those records. 38 C.F.R. § 3.159(e)(1). The Veteran's claims file does not reflect that there are any records from Gulf Coast, nor does it reflect that VA has made any attempts to obtain them. Those records, if still in existence, would be highly relevant to this appeal. They would show that the Veteran sought and received mental health treatment much sooner than the record currently suggests. Because the VA examiner predicates her opinion for direct service connection, at least in part, on the Veteran not seeking mental health treatment until 2007, it potentially could be based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). Thus, remand is required for the AOJ to make reasonable attempts to obtain these records and, if necessary, obtain an addendum opinion. The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send to the Veteran the necessary forms to identify any outstanding private treatment he has received for his psychiatric condition, to include treatment from Gulf Coast Mental Health Center in the late 1990s, and afford him the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on his behalf. If he identifies any records, then make reasonable attempts to obtain them. Such attempts must be documented in the claims file. 3. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 4. Based on the results of the above-required development, conduct any other development deemed necessary, to include obtaining an addendum medical opinion, and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.