Citation Nr: 23019784 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 19-12 199A DATE: March 30, 2023 REMANDED Entitlement to service connection for an acquired psychiatric disorder due to military sexual trauma (MST) is remanded. Entitlement to service connection for a back disability is remanded. Preliminary Matters The Veteran had honorable active-duty service with the United States Navy from February 1990 to February 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding, the Board has recharacterized the claim as reflected on the title page. The Board notes that in his April 2019 substantive appeal (VA Form 9), the Veteran requested a hearing before the Board. Accordingly, the Veteran was scheduled for a Board hearing in February 2023, for which he did not appear. To date, the Veteran has not requested that his hearing be rescheduled or provided good cause for his failure to show. Therefore, the Board finds the Veteran's request for a hearing to be withdrawn. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Initially, the Board notes that the record indicates there may be outstanding and relevant Social Security Administration (SSA) records. The record reflects that the Veteran is in receipt of SSA disability benefits. See SHARE Print Screen (September 2012). The record does not reflect that VA has made any attempt to obtain these federal records from SSA. To ensure that the record contains a complete and updated set of the Veteran's SSA records, a remand is required to allow VA to request those records. 38 C.F.R. § 3.159(c)(2). See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for an acquired psychiatric disorder due to MST is remanded. The Veteran contends he has a current acquired psychiatric disability due to in-service MST. The medical evidence shows a diagnosis of persistent depressive disorder with anxious distress, moderate. See July 2017 VA examination report. In August 2016, the Veteran submitted a VA Form 21-0781a, Statement in Support of Claim for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Assault. The Veteran indicated that, while working late at the shop in service, he was a victim of inappropriate comments and touching by MRI Cortez. He stated that while he was changing into coveralls, he was grabbed in the crotch by MRI Cortez. He indicated that MRI Cortez continued to make remarks and joke about the incident. The Veteran stated that these incidents were frequent until the time of his discharge in February 1994. On VA examination in July 2017, the Veteran reiterated the statements made in his VA Form 21-0781a. He reported that, from July 1992 until separation in February 1994, MRI Cortez made inappropriate comments and groped the Veteran on a continuous basis. The VA examiner indicated that the Veteran did not have a diagnosis of PTSD and provided a diagnosis of persistent depressive disorder with anxious distress, moderate. The examiner opined that it is less likely than not that the Veteran's diagnosed condition is a result of MST. As rationale, the examiner stated that it "seems likely" the sexual assault is a factor, among others, contributing to the symptoms reported by the Veteran; however, occupational functional impairment is reportedly mostly due to his spinal injury and chronic back pain. The examiner further stated that symptoms of the assigned diagnosis and related social functional impairment is related mostly to his son's suicide and physical health and limitations. The examiner stated that although the Veteran believes his depression symptoms began during military service because of multiple stressors during that time, which included but were not limited to the sexual assault and insufficient response when reported, overall evidence available does not support the assault as being the primary factor leading to symptoms and functional impairments. The Board finds the July 2017 opinion incomplete. The examiner did not explain why the post-service traumatic events were more likely the cause of the Veteran's psychiatric disability. In order to be entitled to probative weight, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodrigues v. Peake, 22 Vet. App. (2008). When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is necessary for a new VA examination. The Board notes that the Veteran has specifically identified the alleged assailant, along with a description of events and an approximate time frame for those events, as discussed above. However, there is no indication that the Agency of Original Jurisdiction (AOJ) attempted to verify the Veteran's reports of MST. On remand, the AOJ should take appropriate action and make reasonable efforts to verify the Veteran's claimed in-service stressor. 2. Entitlement to service connection for a back disability is remanded. As previously noted, the matter is remanded to obtain outstanding SSA records. Thereafter, the AOJ should review the record and conduct any additional development, to include obtaining a VA examination and/or opinion, deemed necessary for the adjudication of this claim. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include SSA disability determinations and any medical records underlying these determinations. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. Attempt to verify the Veteran's claimed in-service stressor(s), to include personal assault and sexual assault. Request that the Veteran provide any additional information needed to assist in verification. Notify the Veteran of alternate sources of evidence to support the claim of personal or sexual assault. 4. After completing the above development, schedule the Veteran for a VA examination before an appropriate clinician to determine the nature and etiology of his psychiatric disorder. The Veteran's claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner should be directed to elicit a complete history from the Veteran. The examiner should address the following: (a) Diagnose all psychiatric disabilities found and reconcile the diagnoses with the other evidence of record. Specifically state whether or not each criterion for a diagnosis of PTSD is met, and if so, state the stressor or stressors resulting in that PTSD. (b) Opine whether it is approximately at least as likely as not that any psychiatric disability diagnosed during the pendency of the claim, to include PTSD, had its onset in service or is otherwise etiologically related to service. The examiner should consider the Veteran's reports of psychiatric symptoms during and since separation from service and reports of in-service stressors, to include personal or sexual assault. (c) Opine whether it is approximately at least as likely as not that the Veteran experienced a personal assault or sexual assault stressor during service. If so, opine whether it is approximately at least as likely as not that any psychiatric disability diagnosed at any time during the pendency of the claim is related to that personal or sexual assault. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After all outstanding treatment records have been obtained, the AOJ should review the record and conduct any additional development, to include obtaining a VA examination and/or opinion, deemed necessary for the adjudication of the back claim. (Continued on next page) 6. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. Christopher Seppanen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.