Citation Nr: 22047293 Decision Date: 08/19/22 Archive Date: 08/19/22 DOCKET NO. 15-31 097 DATE: August 19, 2022 REMAND Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1978 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, in a September 2018 decision, the Board granted the petition to reopen the claim for entitlement to service connection for PTSD and remanded the claim for entitlement to service connection for PTSD for additional development. See September 2018 BVA Decision. Thereafter, in a December 2020 decision, the Board, in pertinent part, denied the Veteran's claim, and the Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). See December 2020 BVA Decision. In December 2021, the Court granted the parties' November 2021 Joint Motion for Partial Remand (JMPR), which vacated the portion of the Board's decision that denied entitlement to service connection for PTSD and remanded the matter for further proceedings consistent with the motion. See December 2021 CAVC Decision. Lastly, the Board recognizes that the Veteran has also perfected an appeal for the issue of entitlement to service connection for hypertension. See April 2022 VA Form 10182 Notice of Disagreement. The Board notes that the Veteran appealed the above mentioned claim pursuant to the Appeals Modernization Act (AMA), while the claim addressed in this decision remains under the Legacy Appeals System. By law, AMA appellate streams cannot be merged with legacy claims, and as a result, the issue of entitlement to service connection for hypertension will be addressed in a separate decision under a different docket number. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The JMR found that the Board erred by providing an inadequate statement of reasons and bases for failing to sympathetically construe the Veteran's PTSD to determine if it would warrant service connection for another mental disorder. As reflected above, the Board has re-characterized the claim to entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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.). The JMR further found that the Board should have considered and applied 38 C.F.R. § 3.304(f)(5) to determine if the Veteran's alleged stressor of having a gun pointed at him constitutes an in-service personal assault. Lastly, the JMR stated that the Board should address the adequacy of the September 2020 VA examination in light of the application of 38 C.F.R. § 3.304(f)(5). The Board finds that another VA opinion is necessary. In particular, there is evidence of record reflecting that the Veteran may have an acquired psychiatric disorder that began during his period of service. A remand is necessary to schedule such opinion. The matter is remanded for the following action: Obtain an opinion to address the Veteran's claim for an acquired psychiatric disorder, to include PTSD. The Veteran should be scheduled for an examination if determined necessary. (1) The examiner should identify the diagnosis(es) that are applicable to the Veteran's claim. (2) The examiner should then opine as to whether it is at least as likely as not that the Veteran has an acquired psychiatric disability that began during, or is otherwise etiologically related to, his military service from July 1978 to August 1983. Please explain why or why not. In providing the opinion, the examiner should not consider the Veteran's reported in-service stressor of having a pistol pointed at him, reporting that the pistol failed to fire, and witnessing two people being killed. The examiner is asked to review and consider the entire claims file when offering the opinion, and to specifically note the following: The Veteran reported that his acquired psychiatric disorder may have been caused by medications, to include Benadryl and Atarax, prescribed to treat a skin disorder he developed while serving on active duty. He explained that he did not have any disciplinary problems until he began taking medications to treat allergy symptoms in or around 1983. The Veteran further noted that drowsiness was a noted side effect of the medications he was prescribed in service. See August 1985 Correspondence; June 1986 VA Form 21-4138 Statement in Support of Claim. An April 2007 Decision Review Officer (DRO) conference report shows that the Veteran reported that his acquired psychiatric disorder manifested while he was serving on active duty. Specifically, he indicated that his in-service decline was caused by his divorce from his wife and what it did to his life. He also reported that he underwent in-patient treatment for psychiatric symptoms during service. See April 2001 Hearing Testimony; see also June 1986 VA Form 21-4138 Statement in Support of Claim; December 2009 Congressionals. A review of the service treatment records (STRs) shows that the Veteran sought mental health treatment in late 1982 to 1983 due to marital strife. Specifically, in a November 1982 STR, the Veteran endorsed having nervous trouble. See October 2014 STR Medical. A May 1983 service personnel record (SPR) shows that the Veteran was counseled for poor performance. Thereafter, a June 1983 record indicates that the Veteran was recommended to be released from service because he did not have the desire, drive, ambition or attitude to stay in the Army. It was noted that the Veteran did not do anything that month, missed movements, did not do anything in the field, did not show up on time, and overall exhibited a "piss poor performance." See June 1986 Military Personnel Record. A July 1983 emergency care and treatment record shows that the Veteran complained of emotional problems related to his wife leaving. He was subsequently admitted to a ward for seven days because of a history of administrative difficulties and some suicidal ideation. Of note, the hospital clinical record reflected: [Veteran], according to the admission note, was mainly complaining of the recent departure of his wife for the CONUS. [Veteran's] wife is also an active duty member and she had been transferred back to another base, but they were not given joint spouse assignments and he was very disappointed about this. He said he was having suicidal ideation and was willing to do anything to achieve a reunion with her even though the marriage had been a stormy one. The examiner further noted that the Veteran had various administrative problems, including an Article 15 for failure to report, and noted that he had deserted his post when he came to the hospital to seek admission. The examiner further noted that the Veteran complained that the medications he was taking for recurrent urticaria were making him sleepy and that he was unable to function at his job because of this. It was noted that the Veteran tended to minimize his own problems and to project blame for his difficulties onto others. The Veteran was diagnosed with passive-aggressive personality disorder. In addition, the Veteran endorsed depression or excessive worry and nervous trouble of any sort on his July 1983 chapter 13 report of medical history, and the examiner explained that the Veteran was experiencing emotional difficulties secondary to marital termination. See June 1986 Medical Treatment Record Government Facility; June 2019 STR Medical. A review of the post-service treatment records confirms that the Veteran has been diagnosed with schizophrenia, bipolar disorder, major depressive disorder, depression, and PTSD. See, e.g., August 2017 VAMC Other Output/Reports. The Veteran underwent a special neuropsychiatric examination in August 1986. The examiner noted that the Veteran's claims file showed that he had unsatisfactory work performance, was found to be frequently sleeping on the job, had a bad attitude, and was accused of being away without leave (AWOL) twice while he was serving on active duty, but noted that he denied such events at the time of the examination. However, the Veteran asserted that his sleeping was caused by the medications he was taking for a chronic itching condition of the skin. The examiner further noted that the Veteran spent about two years in jail following service. On examination, the examiner indicated that the Veteran was not distressed and found no evidence of anxiety, depression, cognitive impairment, or of past or present psychosis. However, the examiner noted that a review of the claims file showed that the Veteran had considerable difficulty with authority figures and was considered to have had an "attitude" problem. The examiner diagnosed the Veteran with mild mixed personality disorder. See June 1986 Medical Treatment Record Government Facility. The Veteran was afforded a VA examination for mental disorders in May 2007. During the examination, the Veteran reported that he reached the rank of E-5 during service but indicated that he was subsequently demoted; however, the examiner noted that the Veteran never explained his difficulties in service or indicated why the demotion occurred. He also denied any history of alcohol or substance abuse and indicated that documentation of polysubstance abuse in his claims file was a mistake, though he subsequently admitted experience with such substances 20 years prior to the date of the examination. The examiner noted that the Veteran had experienced numerous legal difficulties in the past for loitering and assaultive behaviors. The Veteran further stated that he stopped working in the 1980s as he was doing odd jobs. On examination, the examiner could not detect any signs or symptoms of depression and as such, found there was no frequency, severity, or duration of symptoms. Rather, he found that the Veteran had been unemployed as a result of behavioral/substance abuse issues and physical difficulties, rather than because of his allegations regarding depression. The examiner further stated that the Veteran did not have multiple mental disorders and explained that the only psychopathology noted was of polysubstance dependence in alleged remission. To this end, the examiner acknowledged that the Veteran had been diagnosed with schizophrenia but reiterated that he could not detect any signs or symptoms conforming to that type of psychopathology. After performing an examination and reviewing the evidence of record, the examiner indicated that it was reasonable to conclude that the Veteran's allegations of depression linked to service were not supported by objective clinical evidence or by contemporaneous records in his claims file. In support of his opinion, the examiner noted that the Veteran had not been treated for depression and was not taking any psychotropic medications. To this end, he acknowledged that it was common to experience mood changes when an individual experiences health issues but explained that such was not the case here. Rather, the examiner found that the Veteran's mood was considered normal at the time of the examination and reported that he could not detect any linkage of depressive symptomatology to his military service. See May 2007 VA examination. In support of his claim, the Veteran submitted a letter from Ann Steidle, a clinical nurse specialist, dated in April 2009. Steidle reported that the Veteran had been diagnosed with a mood disorder, not otherwise specified, and explained that she reviewed the Veteran's in-service and post-service medical records and saw him every other week for psychotherapy. To this end, Steidle found that the Veteran's depressive symptoms manifested in the context of military stressors and the loss of his marital relationship. In this regard, she noted that the Veteran initially received inpatient treatment for his symptoms while he was serving on active duty and continued receiving treatment for his symptoms after he was discharged from service. As such, Steidle opined that the Veteran's psychiatric symptoms were related to his active duty service, in-service activities, and to the response of peers and supervisors to his depression and anxiety symptoms. In support of her opinion, Steidle noted that the Veteran's STRs showed that he had difficulty with hives and generalized itching, and noted that the evidentiary record suggested that such symptoms were stress-related. She further noted that the Veteran was prescribed very high doses of anti-cholinergic medications during service and explained that such medications are very sedating and that the medication-related sedation added to the Veteran's ongoing depressed mood and experience of other psychiatric symptoms which prevented him from functioning in his role during service. Specifically, she noted that the Veteran was counseled numerous times in reference to his behavior, which became more dysfunctional as his illness progressed. In addition, Steidle found that the Veteran continued to experience symptoms of his mood disorder after he and his wife separated, which continued to the present. See June 2009 Medical Treatment Record Government Facility. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.