Citation Nr: 22018136 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-27 500 DATE: March 28, 2022 ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include chronic depression. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include chronic depression is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1979 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021 the Veteran testified before the undersigned Veterans Law Judge in a video teleconference hearing. A transcript of the testimony offered at the hearing has been associated with the record. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran's original claim for service connection for chronic depression has been expanded to include his other possible psychiatric disorders, to include chronic depression, and the claim has been recharacterized as such on the title page. For the reasons explained below the Board finds that further evidentiary development is required before the claim on appeal can be adjudicated. Entitlement to service connection for an acquired psychiatric disorder, to include chronic depression is remanded. The Veteran is claiming service connection for an acquired psychiatric disorder as the result of military sexual trauma (MST) during his period of active- duty service. In an April 2016 statement in support of claim for PTSD secondary to personal assault, the Veteran reported that following the assault he was too embarrassed to report the assault to anyone, but it led to feelings of depression and anxiety as well as a deterioration in his performance while on active duty. The Veteran was afforded a VA PTSD examination in June 2016. The examiner noted that the Veteran appeared to have a pattern of over reporting and inconsistent reporting. At that time the examiner noted that the Veteran did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner also explained that it was beyond his scope of practice to provide an opinion on whether the Veteran experienced an in-service personal assault stressor related to MST that has resulted in his current mental condition. As to the question of whether the Veteran had any other mental health diagnoses other than PTSD, the examiner noted that the diagnosis was deferred. In further detail the examiner explained that the fact that a diagnosis was deferred should not be interpreted that the Veteran did or did not have a psychological diagnosis, but rather that it was not possible to determine if one existed without mere speculation. During the November 2021 Board hearing the Veteran testified that while he had no problems with depression or anxiety prior to entering service, following the sexual trauma incident he became "depressed and just out of line". He also testified that following the assault he began to self-medicate with drugs and alcohol. In addition to seeking substance abuse treatment, he also testified that he sought and received mental health treatment through VA health clinics. Upon review of the claims file the Board notes that the Veteran's VA treatment records do in fact contain multiple notes reflecting that he has received mental health counseling for depression during the appeal period. For example, his treatment records contain a September 2016 mental health group counseling note which contains a diagnosis of unspecified depressive disorder. Also, a January 2018 psychiatry note reflects that the reason for the Veteran's visit was depressive disorder unspecified, alcohol and cocaine use disorders and that he was being treated with a psychiatric medication regimen. Upon review of the claims file, the Board finds that the opinion of the June 2016 VA examiner appears to be inconsistent with the other evidence of record, particularly the Veteran's November 2021 Board hearing testimony as well as his VA treatment records. Additionally, the Board notes that since the June 2016 examination, additional relevant evidence has been added to the claims file which the examiner did not have for consideration when he rendered his opinion. Unfortunately, as such, the Board finds that there is insufficient competent medical evidence on file for the Board to make a decision on this claim. Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). And VA must consider all lay and medical evidence of record. 38U.S.C. §1154 (a); 38U.S.C. §5107; 38C.F.R. §3.303. Accordingly, the Board finds a remand is necessary so that an adequate examination and opinion on service connection for the Veteran's claimed acquired psychiatric disorder can be obtained. Additionally, the Board notes that during the November 2021 Board hearing the Veteran testified that he receives Social Security disability compensation for chronic depression. As such the Board notes that there are potentially relevant outstanding records from the Social Security Administration (SSA) which need to be obtained and associated with the claims file. VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Upon remand, those records should be requested, and associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Obtain, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 3. After the record search is complete, and any new records are added to the claims file, obtain an in-person VA PTSD examination from an appropriate and qualified VA psychologist or psychiatrist, and not the VA examiner who performed the June 2016 PTSD examination, to address the nature and etiology of the Veteran's acquired psychiatric disorder. The claims file including a copy of this remand must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not that the Veteran's claimed acquired psychiatric disorder(s) had their onset in service or are otherwise related any to any in-service disease, event, or injury? When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records and private treatment records and evaluations. The examiner's attention is asked to consider and discuss the Veteran's September 2016 and January 2018 mental health treatment notes which reflect that the Veteran was treated for depressive disorder during the appeal period. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 4. After completing the requested actions, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.