Citation Nr: 22016433 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-20 775 DATE: March 22, 2022 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, posttraumatic stress disorder (PTSD), and insomnia disorder, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Army from October 1987 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018 and September 2021, the Board remanded this matter to the RO for additional development, including to obtain updated treatment records and a VA examination opinion regarding the claimed psychiatric conditions. Although regrettable, additional remand is required for substantial compliance with the Board's remand instructions and to obtain relevant outstanding Social Security Administration (SSA) disability records. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The Board further notes at the outset that in October 2021, the Veteran submitted an unsigned correspondence indicating that he has attempted to obtain his military records from a congressional representative without success. A Privacy Act request must be received in writing and signed by the requestor before it can be honored. 38 C.F.R. § 1.526(a). In the remand section below, the Board shall direct the RO to provide the Veteran with additional information to request the specific records he seeks while the claim is pending additional development. 1. The claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, PTSD, and insomnia disorder, is remanded. The Veteran contends that he has an acquired psychiatric condition related to his active service. The Veteran asserts that he has PTSD due to stress from experiencing an earthquake in October 1989 and due to having to work as a dental assistant with patients who he believed may have had acquired immunodeficiency syndrome (AIDS). See November 2021 VA 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault. The Veteran's representative contends that the Veteran was physically assaulted during service, resulting in a broken nose, and that this incident "could have caused his mental health condition[.]" See June 2017 Appellant's Brief. The Board notes that although the Veteran submitted a VA 21-0781a, neither he nor his representative contend that the Veteran experienced an in-service personal sexual assault. Regrettably, remand is required as the medical evidence of record remains inadequate to adjudicate the Veteran's appeal. First, the Agency of Original Jurisdiction (AOJ) failed to obtain potentially relevant SSA records. During an April 2004 VA examination regarding orthopedic conditions, the Veteran reported he received social security for, "my head, I guess." During his December 2021 VA examination regarding mental health disorders, the Veteran again referred to receiving disability income from Social Security in relation to mental health symptoms. These records indicate to the Board that there are SSA disability records relevant to the instant service connection claim, which have not been obtained or considered by the AOJ. Although the Veteran did undergo VA examination in December 2021 following the Board's most recent remand, this examination was done without access to any of these outstanding SSA records. Additionally, the etiology opinions provided in the December 2021 examination are otherwise inadequate as they fail to address relevant lay and medical evidence already of record. The Board acknowledges that the examining psychologist included in her report extensive lay statements provided by the Veteran during the examination, but the clinician supported her ultimate conclusions with inadequate clinical rationale and did not address the stressor contentions included in the Veteran's November 2021 VA Form 21-0781a and in his July 2017 Brief.. The Veteran's records confirm, as contended by his representative, that the Veteran got into at least one physical altercation with another service member during his active duty, which resulted in an injury to his nose. The examining psychologist failed to address this and other potentially relevant data in the Veteran's service personnel records, which further reflect that he was recommended for separation due to "problems following orders," "demonstrated awkwardness carrying out his duties," and difficulty getting along with peers and superior officers. He was referred for a "mental hygiene consultation" during his active service but deemed "psychiatrically cleared for any administrative action deemed appropriate by Command." The Veteran's DD 214 reflects that he was ultimately separated for unsatisfactory performance. The evidence of record also includes state criminal offense records that span from the late 1980s to 2015. To date, VA examiners have failed to address the clinical significance, if any, of the Veteran's behavior during and following service. This needs to be adequately evaluated by a qualified clinician on remand. Next, VA treatment and vocational rehabilitation records show that various mental health diagnoses have been assigned to the Veteran prior to and during the period on appeal. As pointed out by the Veteran's representative, the evidence shows that the Veteran may have a personality disorder as well, but this was not addressed by the most recent VA examiner, who diagnosed the Veteran with unspecified bipolar disorder, with associated anxiety, sleep disturbance/insomnia and explosive anger, and who did not address the conflicting diagnostic impressions during the period on appeal. Finally, the December 2021 VA examiner's rationale is inadequate as it is speculative. The examiner stated the Veteran's psychiatric condition was less likely than not related to service, but also stated it was "unclear as to whether [the Veteran's] presentation first met criteria for a psychiatric disorder during his military service as he noted having a poor memory and there is not adequate documentation for his pre-military life." The examiner further suggested, without a clear basis in the record, that the Veteran' "appeared to have some interpersonal difficulties with others and trouble at work" prior to entering the military, vaguely suggesting that the Veteran may have had a preexisting psychiatric condition, but the examiner stated she could not "opine further without resort to speculation." No psychiatric condition was noted at the Veteran's enlistment and the Veteran does not contend that his psychiatric conditions preexisted service. The Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In this case, the VA examiner's vague and inadequate opinion, without more, does not rebut the presumption of soundness or reasonably raise the issue of aggravation of a preexisting disability. In sum, additional remand is warranted to address deficiencies in the development of the Veteran's claim. The matter is REMANDED for the following action: 1. Provide the Veteran with guidance to formally request a copy of his military service records pursuant to the Privacy and Freedom of Information Acts. 2. Obtain relevant federal records from SSA. Document all requests for information as well as all responses in the claims file. 3. Thereafter, arrange for a qualified clinician to review the evidence of record, including this remand and the Veteran's complete service personnel and SSA records as referenced above. The clinician shall then provide responses to the questions below. If a new in-person or telehealth examination is necessary, one should be scheduled. (a.) Identify all diagnosed psychiatric disorders that existed during the period on appeal (from June 2014 through the present). Include any identified disorder, even if the condition resolved during the period on appeal. Please identify the basis in the evidence of record for determining the existence of each condition. (b.) For each identified condition (even if resolved during the appeal period), opine whether the condition is at least as likely as not related to an in-service injury, event, or disease, including as due to the Veteran's identified stressors (see November 2021 VA 21-0781a) and including as due to the October 1989 assault during service (see STRs and June 2017 Appellant's Brief). Provide a rationale to support each opinion. (c.) If the Veteran is diagnosed with a personality disorder, the examiner must opine whether any other identified psychiatric condition was at least as likely as not superimposed on the personality disorder during active service and resulted in additional disability. Provide a complete rationale, if such a disorder is identified. (d.) 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. If the Veteran's stressor is based on an in-service personal assault, the examiner must opine whether the PTSD is at least as likely as not related to the in-service personal assault. Provide a complete rationale. 4. Following completion of the above, the AOJ should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal remains denied, the AOJ should issue an appropriate Supplemental Statement of the Case, afford the Veteran and representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.