Citation Nr: 22016641 Decision Date: 03/23/22 Archive Date: 03/22/22 DOCKET NO. 16-59 139 DATE: March 23, 2022 ORDER New and material evidence has been received and the claim of service connection for an acquired psychiatric disorder (initially claimed as depression) is reopened. New and material evidence has been received and the claim of service connection for chronic fatigue syndrome (initially claimed as Persian Gulf War syndrome with fatigue) is reopened. New and material evidence has been received and the claim of service connection for irritable bowel syndrome (IBS) (initially claimed as Persian Gulf War syndrome with diarrhea) is reopened. New and material evidence has been received and the claim of service connection for a disability manifested by muscle joint pain (initially claimed as Persian Gulf War syndrome with muscle aches) is reopened. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for IBS as due to service in Southwest Asia during the Persian Gulf War is granted. Entitlement to service connection for chronic fatigue syndrome as due to service in Southwest Asia during the Persian Gulf War is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include adjustment disorder with mixed anxiety and depressed mood, is remanded. Entitlement to service connection for a disability manifested by muscle joint pain as due to service in Southwest Asia during the Persian Gulf War is remanded. FINDINGS OF FACT 1. Evidence received since the March 1998 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder (initially claimed as depression). 2. Evidence received since the December 1996 administrative denial letter includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of service connection for chronic fatigue syndrome. 3. Evidence received since the December 1996 administrative denial letter includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of service connection for IBS. 4. Evidence received since the December 1996 administrative denial letter includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of service connection for a disability manifested by muscle joint pain. 5. The Veteran's PTSD is related to credible in-service stressors. 6. The Veteran's IBS is due to his service in Southwest Asia. 7. The Veteran's chronic fatigue syndrome is due to his service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for an acquired psychiatric disorder (initially claimed as depression) have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for reopening the claim of service connection for IBS have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for reopening the claim of service connection for chronic fatigue syndrome have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for reopening the claim of service connection for a disability manifested by muscle joint pain have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.304. 6. The criteria for service connection for IBS have been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 7. The criteria for service connection for chronic fatigue syndrome have been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to September 1991. His Military Occupational Specialty (MOS) was combat signaler with service in Southwest Asia from November 1990 to March 1991. He is the recipient of a Southwest Asia Service Medal with two bronze service stars, and Kuwait liberation medal. See DD 214. In January 2021, his character of discharge for the period from October 1985 to September 1991 was upgraded to under honorable conditions (general). These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in July 2017, and a Statement of the Case (SOC) was issued in April 2018. In August 2018, the Veteran submitted a substantive appeal (VA Form 9). Although the Veteran requested a hearing on his VA Form 9, he withdrew his request in a letter received in December 2019. In January 2022, the Veteran waived initial review of additional evidence by the Agency of Original Jurisdiction (AOJ). A May 2021 correspondence reflects the Veteran's request for extreme financial hardship, which the Board will construe as a motion to advance his case on the docket. In support of this contention, the Veteran submitted a disconnect notice for electricity services, dated May 6, 2021. In August 2021, the Veteran's attorney indicated the Veteran did not have income and was suffering from financial hardship. The attorney also asserted that the previous denial of the Veteran's claims was a simple administration correction that caused unnecessary delay, which will cause irreparable financial hardship to the Veteran. Appeals are generally considered in docket number order, but may be advanced on the docket for sufficient cause, which may include advanced age, serious illness, severe financial hardship, or administrative error resulting in a significant delay. 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). Neither the Veteran nor his representative has submitted any other evidence supporting that he is currently under a severe financial hardship (e.g., pending home foreclosure, additional past due utility bills, etc.). Therefore, the motion seeking to advance the Veteran's case on the docket due to severe financial hardship is denied. 38 C.F.R. § 20.900(c). A June 2021 correspondence also reflects the Veteran's request to advance his case on the docket based on hospitalization for open heart surgery. Under 38 C.F.R. § 20.900(c), a case may be advanced on the Board's docket for several reasons, to include due to serious illness. 38 U.S.C. § 7107(a)(2). The Veteran was hospitalized from June 17, 2021, to June 23, 2021, to undergo coronary artery bypass graft (CABG) surgery to treat his coronary artery disease (CAD). A treatment note from June 2021 indicates that he developed mild postoperative hyperglycemia related to the stress of surgery. He was recommended to undergo lifestyle/diet education to reduce his increased risk of developing diabetes. A subsequent July 2021 note indicates the Veteran reported he was physically recovering from his bypass surgery and feeling better each day, but was working on the emotional impact of the surgery. As the evidence does not demonstrate that the Veteran's CAD is a terminal illness, the Board denies the motion to advance on the docket. While the matter was in remand status, in a May 2021 rating decision, the RO granted service connection for tinnitus and assigned an initial 10 percent rating, effective March 23, 2021. That award constitutes a full grant of the benefit sought on appeal with respect to the claim of service connection for tinnitus; thus, that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). The Board acknowledges that the Veteran's complete service treatment records (STRs), specifically for the period from October 1985 to September 1991, cannot be located and have been determined to be unavailable for review. See, e.g., March 2013 Notification Letter. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a claim for service connection. Rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicolson, 19 Vet. App. 215 (2005). Regarding the issue of service connection for an acquired psychiatric disorder, the Board notes that the RO originally adjudicated this issue as separate issues of service connection for depression and adjustment disorder with mixed anxiety and depressed mood (claimed as posttraumatic stress disorder (PTSD), to include trouble sleeping). The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Accordingly, the Veteran's claims have been recharacterized in this appeal to include the related acquired psychiatric diagnoses. Similarly, and in light of Clemons, the Board has recharacterized the issue of service connection for IBS to encompass any disability manifesting in diarrhea. 23 Vet. App. 1, 4-6 (2009). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for an acquired psychiatric disorder (initially claimed as depression). A March 1998 rating decision denied service connection for depression on the basis that no service medical records were available for review and that the Veteran's discharge from service under other than honorable presented a statutory bar to benefits for service connection. The Veteran did not appeal that rating decision, or submit new and material evidence within the following year, and it became final and is the last prior final rating decision in the matter. 38 U.S.C. § 7105. The evidence of record at the time of the March 1998 rating decision consisted of a June 1992 administrative decision, which determined that the Veteran's character of discharge for the period of service from October 18, 1989, to September 9, 1991, was issued under conditions which constitute a bar to his receipt of VA benefits. A February 1998 VA memo indicates the Veteran's service medical records were unavailable and all reasonable probabilities have been exhausted to obtain the records. Evidence received since the March 1998 rating decision includes treatment records, which diagnosed various psychiatric disorders, and a January 2021 decision from the Army Board for Correction of Military Records which upgraded the Veteran's character of discharge to under honorable conditions (general). This evidence is new and material evidence, as it tends to relate the Veteran's acquired psychiatric disorder to service. Considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, and particularly that STRs are unavailable, the Board finds that the evidence is both new and material, and the claim of service connection for a an acquired psychiatric disorder may be reopened. 2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for IBS (initially claimed as diarrhea). 3. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a disability manifested by joint pain (initially claimed as muscle aches). 4. Whether new and material evidence has been received to reopen the previously denied claim of service connection for chronic fatigue syndrome (initially claimed as fatigue). The AOJ denied the Veteran's claims for service connection for Persian Gulf syndrome with fatigue, diarrhea, and muscle aches in a December 1996 administrative denial letter. The denial was predicated on the Veteran's discharge from service in September 1991 as being under dishonorable conditions. The Veteran did not submit an NOD and no new and material evidence was received by VA within one year of the issuance of the denial letter. As such, the denial became final. See 38 U.S.C. § 7105. Since the December 1986 administrative denial letter, new and material evidence has been received, to include the aforementioned January 2021 decision from the Army Board for Correction of Military Records which upgraded the Veteran's character of discharge to under honorable conditions (general). Therefore, to this extent only, the previously denied claims are reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. In addition, disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As a general matter, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). Changes brought by the DSM-5 also involved modifications to diagnostic criteria, including how to determine qualifying stressors or onset of PTSD. Therefore, when adjudicating service connection claims based on mental health disabilities that were pending before the AOJ on or after August 4, 2014, the Board must ensure that the Veteran received an adequate VA examination or medical opinion in light of the DSM-5. See Molitor v. Shulkin, 28 Vet. App. 397, 410-11 (2017). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (March 19, 2015). In the present case, the AOJ certified the current PTSD appeal to the Board in December 2016, which is after August 4, 2014. Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case for the PTSD and other psychiatric disorder issues on appeal. In any event, the Board will consider any private or VA mental health clinician's discussion of both the DSM-IV and DSM-5 in adjudicating the current acquired psychiatric disorder claim, in order to provide the Veteran every benefit of the doubt. If it is established through military citation or other supportive evidence that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2); see also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. Service connection also may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A MUCMI is defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and IBS. 38 C.F.R. § 3.317(a)(2)(ii). It means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b). Under 38 C.F.R. § 4.114, Diagnostic Code 7319, irritable colon syndrome is rated 10 percent when moderate, with frequent episodes of bowel disturbance with abdominal distress. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 5. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD. The Veteran has several theories of service connection for his acquired psychiatric disorder. First, he contends that his PTSD began during service as a result of his brother's terminal illness and girlfriend's abortion, which caused him to go AWOL from March 1991 to July 1991. He also asserts that he had onset of depression as a result of exposure to biological agents or experimental drugs given by the Army, which affected his "good judgment" and caused him to go AWOL. See Third Party Correspondence, received May 1, 1997. Finally, he asserts that his acquired psychiatric disorder is the result of seeing and cleaning up dismembered bodies during combat in the Persian Gulf War. See Hearing Testimony and November 2021 C&P Exam. The Veteran's DD 214 shows that he served in Southwest Asia from November 1990 to March 1991. His MOS is noted as combat signaler. The Veteran has been awarded the Southwest Asia Service Medal with two bronze service stars in recognition of this service, and as he had a combat MOS contemporaneous with service in a theatre of combat operations, his assertions of service in combat area are presumed credible under the law. A review of the record shows that a record of proceedings for an October 2020 Army Board for Correction of Military Records indicates the Veteran "thinks he was and is still suffering from posttraumatic stress disorder (PTSD). He was not thinking correctly. After his time in the Gulf War, he thinks he had onset of PTSD when he was discharged and did not have a clear mind at that time." The Veteran provided a letter from a VA psychiatrist, dated June 25, 2018, indicating he been seen at the VA clinic since 2016 and diagnosed with depression and PTSD, with nightmares related to his time in combat during the first Gulf War. The record continued that in August 1991, court-martial charges were preferred against the Veteran for being AWOL from March 1991 to July 1991. In August 1991, the Veteran requested discharge in lieu of trial by court martial. In connection with his request for discharge, he submitted a personal statement admitting that he went AWOL because he was informed his girlfriend had an abortion and his brother was dying. The Veteran indicated, "He was not thinking right and he went AWOL to be with his brother." The report noted the Veteran had been treated for adjustment disorder, PTSD, and depression, not otherwise specified (NOS), in addition to multiple medical conditions since May 1994. The report noted that based on the Veteran's service for five and a half years, with two years of foreign service, and his reason for going AWOL (i.e., his brother dying), the Veteran's characterization of service was upgraded to under honorable conditions (general). A review of the post-service treatment records reveal Axis I diagnoses of adjustment disorder with mixed anxiety and depressed mood, depression, NOS, and PTSD. See e.g., CAPRI, received March 21, 2013, and November 17, 2016. In December 2021, the Veteran was afforded a VA examination. The Veteran reported that during service, he watched a SCUD missile hit a building and kill 28 people. He had "to go in and clean the place," including the dismembered bodies. The examiner indicated the Veteran has a diagnosis of PTSD that conforms to DSM-5 criteria and no other diagnosed mental disorders. The examiner reported that symptoms that applied to the Veteran's PTSD were anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. After examining the Veteran in person and reviewing the claims file, the examiner opined that it was at least as likely as not that PTSD was incurred in or caused by service. The examiner explained that the Veteran has been diagnosed with PTSD and his symptoms of depression are subsumed by his PTSD diagnosis. The Veteran also participated in combat during the Gulf War and cleaned up dismembered bodies. The examiner also noted the Veteran has expressed feelings of hopelessness, as well as chronic suicidal thoughts and a desire to die. As the Veteran has a current PTSD diagnosis that subsumes his diagnosis of depression, credible lay statements of an in-service stressor, and a link between his current psychiatric symptoms and the in-service stressor, all three elements of the claim have been satisfied, and service connection for PTSD is warranted. 6. Entitlement to service connection for IBS as due to service in Southwest Asia during the Persian Gulf War. 7. Entitlement to service connection for chronic fatigue syndrome as due to service in Southwest Asia during the Persian Gulf War. The Veteran asserts that he has IBS and chronic fatigue syndrome related to service in the Southwest Asia Theater of Operations. During the August 2016 DRO hearing, he testified that he experienced bowel and digestive symptoms, as well as fatigue within a year of leaving the Gulf, which persisted thereafter. He testified that he had undergone a surgery due to bleeding and leakage from his colon two to three years prior. He also testified that he received monthly B12 injections and took 2000 milligrams of B12 daily to address his fatigue/tiredness. As noted above, the Veteran served in Southwest Asia from November 1990 to March 1991. Thus, he is entitled to the presumptions provided for a Persian Gulf veteran. See 38 C.F.R. § 3.317(a). Moreover, a November 2021 VA examiner confirmed diagnoses of IBS and chronic fatigue syndrome and determined they were diagnosable chronic multi-symptom illnesses with partially explained etiologies. The examiner specifically indicated the evidence supported the conditions were presumptively related to the Veteran's service. The November 2021 VA opinion was predicated on a review of the record, in-person examination, and interview of the Veteran. There is no competent opinion to the contrary. In fact, the opinion only works to support the Veteran's credible testimony, and lay statements, indicating on-going bowel disturbance and digestive problems since service. The three elements of service connection are met. Based on the foregoing, the Board finds that service connection is warranted for the Veteran's IBS and chronic fatigue syndrome as due to his service in Southwest Asia. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include adjustment disorder with mixed anxiety and depressed mood. As noted above, the Veteran has asserted that he has an acquired psychiatric disorder as a result of service. He has Axis I diagnoses of adjustment disorder with mixed anxiety and depressed mood. See e.g., CAPRI, received March 21, 2013. As discussed above, in the December 2021 VA examination, the examiner thoroughly commented on the pathology and etiology for PTSD, which he diagnosed and linked to combat stressors, and depression, which he opined is subsumed by the Veteran's PTSD. However, no consideration of the Veteran's diagnosed adjustment disorder with mixed anxiety and depressed mood was noted. As such, a remand is necessary to obtain a new VA examination and opinion to clarify the Veteran's diagnoses and address service connection for adjustment disorder. A review of the file reveals that there are Social Security Administration (SSA) records that potentially contain evidence pertinent to issues on appeal. Where a veteran receives SSA benefits which are based on the determination of disability, those records are potentially relevant and should be obtained. See Golz v. Shinseki, 590 F.3d 1317, 323 (Fed. Cir. 2010). The Veteran's attorney submitted a notice letter from SSA, which indicates a grant of disability benefits. See November 2021 SSA /SSI letter. As such, any outstanding SSA records should be obtained on remand. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from November 2021. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for a disability manifested by muscle joint pain. Remand of the issue of service connection for a disability manifested by muscle joint pain is also warranted in order for any outstanding SSA and VA medical records that are obtained to be considered regarding such. The matters are REMANDED for the following action: 1. Efforts must be made to obtain any outstanding VA treatment records from November 2021. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records must be documented in the claims file, and the Veteran must be informed if any such records are unable to be secured. 2. Request copies of all SSA records upon which any SSA disability benefit award was based, and copies of any medical records associated with any subsequent disability determinations. If such records are identified but not obtained, the Veteran and his attorney should be notified. 3. Arrange for the Veteran to undergo a VA mental health examination by a psychiatrist or psychologist with respect to his service connection claim for an acquired psychiatric disability (other than PTSD). The claims file to include a complete copy of this Remand, must be made available to the VA examiner, and the examination report should reflect full consideration of the Veteran's documented medical history and lay assertions. All indicated tests and studies (to include psychological testing, if necessary) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After review of the claims file and examining the Veteran, the examiner is asked to address the following: (a) Determine all current psychiatric diagnoses, including, but not limited to whether the Veteran has a diagnosis of adjustment disorder with mixed anxiety and depressed mood, under the DSM-5. If the examiner finds that the Veteran does not meet the criteria for a diagnosis of adjustment disorder, please reconcile this opinion with the diagnoses of adjustment disorder with mixed anxiety and depressed mood shown in VA outpatient psychiatric notes. (b) Is it as least as likely as not (i.e., a 50 percent probability or greater) that any diagnosed psychiatric disability, to include adjustment disorder with mixed anxiety and depressed mood, had its onset during active service, or is otherwise related to the Veteran's active service? In particular, the VA examiner should consider the December 2021 VA opinion (providing a diagnosis of PTSD with onset during service), VA treatment records dated from August 1995 to March 2021 (showing diagnoses of adjustment disorder with mixed anxiety and depressed mood/depressive features), and the Veteran's lay statements of record. A complete rationale must be provided. R. Behlen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.