Citation Nr: 22053285 Decision Date: 09/20/22 Archive Date: 09/20/22 DOCKET NO. 17-44 344 DATE: September 20, 2022 REMANDED Entitlement to service connection for a psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1976 to December 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in November 2021 by the Board and is now back before the Board for review. Entitlement to service connection for a psychiatric disability is remanded. The Veteran attended a VA examination in February 2022 and the examiner issued an opinion in February 2022, along with an addendum opinion in March 2022. These opinions were obtained in accordance with the November 2021 Board, which, in pertinent part, directed the RO to obtain a VA medical opinion under a legally incorrect standard. Specifically, the U.S. Court of Appeals for the Federal Circuit found that the proper standard of review for determining whether a claim for VA benefits may be granted is whether the factors are in an "approximate balance," such that a veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance, i.e., nearly equal, and does not require the evidence to be in exact equipoise. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). As such, the standard of review utilized by the clinicians who conducted the prior VA opinions that found the current psychiatric disability to be less likely as not (less than a 50 percent probability) incurred in service are not in accord with the proper standard of review enunciated in Lynch. Id. Thus, a new opinion is needed before this claim can be decided on the merits. Additionally, the Veteran indicated in the February 2021 VA examination that he is in receipt of Social Security Disability Insurance benefits. The record does not indicate that the RO has requested records from the Social Security Administration (SSA). VA has a duty to obtain SSA records where it has notice of an application for Social Security disability benefits. 38 C.F.R. § 3.159(c)(2). A November 2010 VA treatment record indicates that the Veteran reported he was unable to work due to his psychiatric disability, so those records are relevant to the claim currently on appeal. The matter is REMANDED for the following actions: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum VA medical opinion. The examiner should comment on the following: a) Identify all currently-diagnosed psychiatric disorders, including those diagnosed or present during or approximate to the appeal period (from July 2014 to the present). b) For each disability identified, identify whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any disability diagnosed during the appeal period (2014 to the present) was incurred in or is otherwise related to service, to include any service treatment records and/or military personnel records pertaining to the Veteran's "unsuitability" for service and subsequent discharge. The examiner is advised that the Veteran is competent to report his psychiatric symptoms and history and such reports must be acknowledged and considered in formulating any opinion. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinion expressed. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. S. M. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.