Citation Nr: 22018378 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-10 332 DATE: March 29, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for bilateral sesamoiditis and foot pain is remanded. Entitlement to an initial rating in excess of 30 percent for unspecified depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2006 to January 2012. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 30 days for the submission of supporting evidence. The Board subsequently received additional evidentiary submissions. The Board notes that in October 2020, the Veteran submitted a private medical opinion concluding that he has a diagnosis for posttraumatic stress disorder (PTSD) and that it is related to service. The opinion additionally found that symptoms for the Veteran's PTSD included, among others, intrusive thoughts, nightmares, increased irritability, and emotional numbing. The Board finds that the claim of entitlement for service connection for PTSD, and its underlying symptoms or complications, are not within the scope of the appeal. In this instance, the Veteran is service-connected for unspecified depressive disorder, which, is separate and distinct from PTSD. Moreover, the Board observes that service connection for PTSD not only requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), and a link, established by medical evidence, between current symptoms and an in-service stressor, but also credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Additionally, the Board notes that the record does not show that the Veteran's PTSD is a "complication" of the claimed conditions on appeal. See 38 C.F.R. § 3.155(d)(2) ("VA will . . . consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed conditions, including those identified by the rating criteria for that condition" in the rating schedule.) (Emphasis added). Indeed, a review of the record does not reveal competent evidence demonstrating that the Veteran's PTSD connotes a causal or aggravative relationship between the claimed conditions. See Bailey v. Wilkie, 33 Vet. App. 188, 200 (2021). Accordingly, the Board finds that the claim of entitlement for service connection for PTSD, and its underlying symptoms or complications, are not within the scope of the appeal. The Veteran is, thus, advised that if he seeks service connection for PTSD, and its underlying symptoms or complications, all claims for benefits must be submitted on required forms. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim forms prescribed by the Secretary and available online or at the local RO. This provision effectively removed informal claims from VA's processes. By providing the Veteran with this information, the Board, in essence, has given him an understandable way of what he has submitted is insufficient and provided him "of the information necessary to complete the appropriate application form prescribed by the Secretary." 38 C.F.R. § 3.155(b)(3) (setting forth the Secretary's responsibility "[u]pon receipt of an intent to file a claim"). Further, the Board notes that the agency of original jurisdiction (AOJ) has sent the Veteran correspondence instructing him to submit an application for benefits in order to begin developing his claim. See Request for Application (October 2020). Lastly, in remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for OSA is remanded. 2. Entitlement to service connection for bilateral plantar fasciitis is remanded. 3. Entitlement to service connection for bilateral sesamoiditis and foot pain is remanded. Issues 1-3. The Veteran, and his representative, argues that his disabilities either had their onset during, or are related to, service. For reasons explained below, the Board finds that remand is necessary to ensure that VA has met its duty to assist the Veteran in the development of his claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, the record appears to be incomplete insofar as it does not reveal a complete set of the Veteran's service personnel records or service treatment records (STRs) from his period of service in the Marine Corps Reserve. In this regard, the record indicates that following active service, the Veteran had service in the Marine Corps Reserve. Indeed, VA examination report, dated in August 2018, reveals that the Veteran reported being promoted to Sergeant as an active reservist. The Veteran's DD Form 214 also indicates that he had a reserve obligation until January 2014. The AOJ, however, has not attempted to verify the Veteran's Marine Corps Reserve service dates or periods of active duty associated therewith. Additionally, there is no indication in the record that the AOJ has attempted to obtain the Veteran's STRs related to his period of service in the Marine Corps Reserve. Such information is relevant in the sense that it could help the Veteran establish the onset, or continuity of symptoms, of his disabilities. Next, remand is also required to attempt to obtain reasonably identified relevant outstanding treatment records. In this regard, the record reasonably identifies relevant outstanding non-VA treatment records. Specifically, at the Board hearing, the Veteran testified to receiving treatment for his conditions from St. Vincent's in Oregon. The record additionally contains a private medical opinion from the Veteran's primary care physician, Dr. Calvert. The record, however, does not reveal that VA has attempted to obtain private treatment records from these providers, to include asking the Veteran to submit an authorization for release of the private treatment records. As these treatment records, if obtained, could bear on the outcome of the Veteran's claims, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is also required to allow VA to obtain these records. Thus, given the above, the Board finds that remand is necessary for further development of the claims. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Accordingly, any adjudication of the claims at this juncture is unreasonable given the appearance of an inadequate and incomplete record. Brambley v. Principi, 17 Vet. App. 20 (2003). 4. Entitlement to an initial rating in excess of 30 percent for unspecified depressive disorder is remanded. The Veteran, and his representative, contends that a higher evaluation is warranted for his service-connected disability. The Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Here, the record indicates that there may be outstanding relevant VA treatment records. In this regard, at the Board hearing, the Veteran testified to receiving treatment at a VA hospital in Billings, Montana. See Hearing Transcript at 19 (October 2020). However, in this instance, the record does not reveal that the AOJ has obtained the Veteran's VA treatment records from this VA medical center (VAMC); indeed, the record reflects VA treatment records were last obtained from a VAMC in Portland, Oregon. As any complaints or treatment with VA is relevant in determining the severity of the Veteran's unspecified depressive disorder, remand is necessary to associate any outstanding VA treatment records with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). The matters are REMANDED for the following actions: 1. Verify the dates of the Veteran's service in the Marine Corps Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service. (a) Obtain the Veteran's complete service personnel records pertaining to his service in the Marine Corps Reserve. Document all requests for information as well as all responses in the claims file. (b) Obtain the Veteran's complete STRs pertaining to his service in the Marine Corps Reserve. Document all requests for information as well as all responses in the claims file. (c) If necessary, notify the Veteran if service personnel records and/or STRs are unavailable through official sources and provide him an opportunity to provide copies of those records. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms for his OSA, bilateral foot disabilities, and unspecified depressive disorder, to include from St. Vincent's, Dr. Calvert, and any Vet Center. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile 3. Obtain all VA treatment records to the Present, to include VA treatment records from any VAMC in Billings, Montana. 4. Conduct any other development deemed necessary and readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.