Citation Nr: 22014309 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-57 369 DATE: March 12, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. REASONS FOR REMAND The Veteran had active military service from October 1971 to December 1979 and from May 1980 to October 1993. He and his spouse (J.F.) testified in support of this claim during a November 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Looking back historically, in a January 25, 2014, rating decision the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for service connection for depression, noting there was no diagnosis of depression and that clinical records from Dr. Nguyen were not available. However, the claims file contrarily includes clinical records from Dr. Nguyen noting a diagnosis of depression, and which were noted to have been received by VA on January 22, 2014. It appears these records may not have been associated with the Veteran's claims file prior to the rating decision. In addition, these records again were received by VA in February 2014. Thus, the Board finds that new and material evidence was received within one year of that prior denial of this claim, in turn meaning that earlier decision did not become final and binding. See 38 C.F.R. § 3.156. Also consider that the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that an appellant's diagnoses arising from the same symptoms for which he is seeking benefits do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he submitted. See Clemons v. Shinseki, 23 Vet. App (2009). Here, for this reason, the Board finds that the Veteran's claim should be recharacterized more generally as for service connection for an acquired psychiatric disorder, however diagnosed. The claims file includes a March 2015 Disability Benefits Questionnaire (DBQ) and accompanying psychological evaluation report by Dr. R. Hayes. Dr. Hayes opined that the Veteran suffers from PTSD and major depressive disorder (MDD) due to racial prejudice during his service and constant reminders that he was a "black man considered less than any white soldiers" and on "a daily basis he had to endure racial slurs and bigotry with no reasonable or sensible way to report it". Ultimately, however, the Board finds this opinion lacks significant probative weight, partly because it appears largely predicated on generalized studies and assumptions rather than on information specific to this Veteran. The Veteran served in the military for more than 20 years, re-enlisted several times, and had many exemplary ratings. During his service his supervisors noted that he "engenders confidence" in his students, co-workers, and seniors, that he is one of the "best inspirational leaders" with an excellent ability to communicate with others, that he deals with people in a "superb manner", that he has received complimentary reports from off-ship personnel with whom he deals, that he was "well-liked" by superiors as well as peers, that he was quick-witted and compassionate, that he was one of the "Navy's best leaders", that he had "unparalleled trust" from peers and seniors, that he sets an example for subordinates, and that one of his superiors could not think of anyone else to be in charge of the area. He also was involved in spearheading the Command's Equal Opportunity program and maintains a work environment "free of discrimination of any type". He consistently was recommended for promotion and actually was "frocked" (allowed to wear the higher grade) on more than one occasion. In sum, the Veteran's military personnel records recount that he was admired, well-liked, and had the respect of subordinates, peers, and superiors, so these records do not tend to support Dr. Hayes' contrary findings in any way. Moreover, the Board finds that these military personnel records, which are contemporaneous to the Veteran's time in service, are more probative than contrary statements made decades later long after the fact. That said, a VA examination and opinion are warranted based on two other records in the file. A December 1977 evaluation report reflects that the Veteran "experienced a period of depression and was under the care of a doctor for three months during this marking period. Simultaneously, [he] demonstrated a negative attitude towards the Navy. [Then] currently, [he] is the work center supervisor of a seven man show. Ratee has totally reversed his demonstrated attitude and is a functional member of the repair Department." He had divorced his first wife in May 1978 after less than four years of marriage. Subsequently, however, the Veteran denied depression or excessive worry in Reports of Medical History. See, e.g., December 1979 and May 1984. But a May 1989 Report of Medical History shows he contrarily checked a box indicating that he had depression or excessive worry with the notation that he was "[then] currently under stress [secondary] to [his] divorce." He had divorced his second wife in May 1989 after nine years of marriage. Subsequently, on his August 1993 Report of Medical History in anticipation of his retirement from the military, the Veteran again denied depression or excessive worry. He retired from the military in October 1993, as mentioned, after more than 20 years of service. Records since his service, dated in 2011, are unremarkable for complaints or treatment of an acquired psychiatric disorder of any sort. Records dated in 2012, so still some two decades after his separation from service, note anxiety and depression. A September 2012 Dr. Nguyen record explains the Veteran reported anxiety and depressed mood. He was to continue Alprazolam for anxiety, started on Sertraline for depression, and noted to need Psychiatry evaluation. Records dated in 2013 note that he had short term memory loss, but, notably, Alzheimer's Dementia since has been diagnosed and described as possibly a hereditary form of it. Because of these several discrepancies in the evidence, the Board is obtaining additional medical comment before deciding the appeal of this claim. Accordingly, this claim is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 4142 for all mental health treatment/evaluations in 1977 and more recently in 2012 and 2013. If he provides this necessary authorization, obtain these additional records. Document all requests for these records, as well as all responses, in the claims file and appropriately notify him and his representative if unable to obtain these additional records. 2. After receiving all additional treatment or other relevant records, have the Veteran undergo a mental status evaluation for more medical comment concerning whether it is as likely as not (50 percent or greater probability) he has an acquired psychiatric disorder because of his service. If the examiner determines that an examination of the Veteran would not serve any useful purpose because he has Alzheimer's Dementia, the examiner must expressly indicate this, provide explanation of why an in-person examination would not be helpful, and in any event provide the requested opinion on etiology. To this end, the examiner must consider the pertinent evidence of record including especially: a) the Veteran served for more than 20 years in the military, re-enlisting several times; b) a December 1977 evaluation report showing he had "experienced a period of depression and was under the care of doctor for three months" with a negative attitude, but that he then totally reversed this attitude (he had divorced his first wife in May 1978); c) Reports of Medical History in December 1979 and May 1984 reflecting that he denied depression or excessive worry; d) a May 1989 Report of Medical History showing he checked the box indicating he had depression or excessive worry with the notation that he was "currently under stress [secondary] to divorce" (he had divorced his second wife in May 1989); e) an August 1993 Report of Medical History for retirement purposes indicating he again denied depression or excessive worry; f) the earliest clinical evidence of depression and anxiety in 2012, memory loss in 2013, and subsequent diagnosis of Alzheimer's Demential (possibly a hereditary form of it). The examiner also is encouraged to consider the Veteran's enlisted evaluation reports containing opinions of his superiors that he "engenders confidence" in his students, co-workers, and seniors, that he is one of the "best inspirational leaders" with an excellent ability to communicate with others, that he deals with people in a "superb manner", that he has received complimentary reports from off-ship personnel with whom he deals, that he was "well-liked" by superiors as well as peers, that he was quick-witted and compassionate, that he was one of the "Navy's best leaders", that he had "unparalleled trust" from peers and seniors, that he sets an example for subordinates, and that one of his superiors could not think of anyone else to be in charge of the area, that he was involved in spearheading the Command's Equal Opportunity program, and maintains a work environment "free of discrimination of any type". Conversely, any allegation of chronic and pervasive bigotry against the Veteran has not been shown by probative evidence to be credible; thus, the examiner cannot accept this allegation as fact. Rather, the examiner should consider the notations made in 1977 and 1989 of depression and the circumstances possibly precipitating it at those times. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.