Citation Nr: 22051145 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 19-30 532 DATE: September 8, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1969 to January 1972 and from January 1977 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board; a transcript of that hearing is of record. Finally, the Board notes that the Veteran originally claimed entitlement to service connection for "Anxiety Disorder with [posttraumatic stress disorder (PTSD)] symptoms". See October 2018 Application for Disability Compensation (VA Form 21-526EZ). However, a claim for service connection for an acquired psychiatric disability encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has characterized the issue on appeal broadly to include all acquired psychiatric disabilities. Unfortunately, a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran asserts that his current psychiatric pathology was incurred during, or is otherwise related to, his active service. In particular, the Veteran maintains that he began experiencing symptoms including anxiety...... following psychologically stressful events that occurred during his active service, including his participation in combat activities in Vietnam. See, e.g., January 2022 Board Hearing Transcript. Initially, the Board notes that the Veteran's service treatment records (STRs) have not been associated with the claims file, and the service personnel records (SPRs) that have been obtained appear to be incomplete. Under such circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Appellant's treatment records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). See, too, Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005) (reflecting that this expanded duty includes searching for alternate sources of records). Here, the record reflects that the RO submitted requests for the Veteran's service records to the National Personnel Records Center (NPRC) in January 2018 and March 2018. See January and March 2018 VA Requests for Information. A subsequent March 2018 Personnel Information Exchange System (PIES) response from the NPRC reflects that "all available requested records were shipped" for scanning and association with the Veteran's electronic claims file. See March 2018 VA Request for Information Response. In an April 2018 letter, the RO notified the Veteran that VA was unable to locate any of his STRs. See April 2018 Notification Letter (detailing the actions taken by the RO to obtain the Veteran's records and the responses received). However, there is nothing of record to suggest that the agency or original jurisdiction (AOJ) undertook any efforts to identify alternate sources of potentially relevant service records, and there is no indication that any additional record searches were conducted in conjunction with the current claim, which was received by VA in October 2018. See October 2018 Application for Disability Compensation (VA Form 21-526EZ). Moreover, in the January 2019 rating decision that forms the basis of this appeal, the AOJ failed to acknowledge the missing STRs and instead inexplicably stated that the Veteran's "service treatment records do not contain complaints, treatment, or diagnosis for" his asserted psychiatric condition. See January 2019 Rating Decision. Accordingly, in light of the foregoing and considering VA's heightened duty to assist, on remand, the RO must again attempt to obtain any additional outstanding service treatment or personnel records from the appropriate records repositories and/or any other appropriate sources of records. The Board also finds the December 2018 VA psychiatric examination report and opinion to be inadequate. In particular, the VA examiner based his conclusion that the Veteran's diagnosed psychiatric condition was unrelated to his active service primarily upon his finding that "[t]here is no record of psychiatric complaints/diagnoses/treatment in [the Veteran's] STRs." See December 2018 VA Initial PTSD Disability Benefits Questionnaire (DBQ). However, given that the Veteran's STRs are unavailable, as discussed above, it is impossible for the VA examiner to have reviewed them in conjunction with the psychiatric evaluation. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a physician's opinion based on an inaccurate factual premise has no probative value). Finally, the Board notes that the Veteran's VA treatment records contain an October 2018 treatment report from a VA psychologist finding that the Veteran's "significant anxiety symptoms... do seem to have started secondary to combat experiences." See October 2018 VA Mental Health Progress Note (noting that the Veteran "is a Vietnam veteran who had direct combat experiences" and reflecting a diagnosis of "Anxiety Disorder (with PTSD symptoms)"). While this is certainly an indication that the Veteran's current psychiatric disorder may be related to his active service, as he asserts, it is too speculative to support a decision on this claim. See, e.g., Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," "may," or "possibly," without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). Therefore, given the above, a VA addendum opinion should also be obtained on remand. The matter is REMANDED for the following action: 1. Contact any appropriate custodian (i.e., the National Personnel Records Center (NPRC); the Records Management Center (RMC); the Defense Personnel Records Information Retrieval System (DPRIS); the National Archives and Records Administration (NARA); or any other appropriate entity) and request an additional search for service treatment records (STRs) and service personnel records (SPRs) pertaining to the Veteran, including from alternate sources, as appropriate. All records and/or responses received should be associated with the claims file. The non-existence or unavailability of the information and/or records must be verified by each Federal department or agency from which they are sought. Such verification should be documented for the record and the appellant should be provided notice of that fact. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 2. Obtain and associate with the file any outstanding VA treatment records, including specifically all records of VA mental health treatment and counseling. See January 2022 Board Hearing Transcript (reflecting the Veteran's report that he has been receiving VA mental health treatment since 2018 and further noting that he "regularly see[s] a [VA] mental health counselor" and that he sees a VA a psychiatrist "about every 90 days"). 3. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule an appropriate VA mental health examination to assist in determining the nature and etiology of the Veteran's claimed acquired psychiatric disorder. The examination should be scheduled with a different examiner than the examiner who performed the October 2018 examination, if possible, and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. All pertinent symptomatology should be reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available lay statements and testimony, medical treatment records, examination reports, and a copy of this REMAND), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current psychiatric disorders found to be present. As to each psychiatric disorder identified on examination or diagnosed during the pendency of the claim, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed psychiatric disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, including the psychologically stressful combat-related events reported by the Veteran. In providing the requested opinion, the examiner should consider and address the lay and medical evidence of record concerning the onset and duration of the Veteran's psychiatric symptoms. The examiner should specifically consider and address the October 2018 VA Mental Health Progress Note in which the evaluating VA psychologist diagnosed "Anxiety Disorder (with PTSD symptoms)" and further stated that the Veteran's "significant anxiety symptoms... do seem to have started secondary to combat experiences." The examiner is also advised that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. If the Veteran's reports regarding his history of symptoms are rejected, the examiner must provide a reason for doing so. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset, duration, and severity of any identified disability. If the Veteran's reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner must provide a reason for doing so. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.