Citation Nr: 23038136 Decision Date: 07/11/23 Archive Date: 07/11/23 DOCKET NO. 16-49 341 DATE: July 11, 2023 REMANDED 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 March 1970 to November 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veran Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing could not be associated with the record due to audio malfunctions of the Digital Audio Recording System (DARS). In a July 2020 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days it would be assumed that he did not want another hearing. The Veteran did not respond to the letter. The Board remanded the matter for a VA examination in October 2020, which took place in November 2020. The Veteran's claim was denied by the Board in August 2021. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In September 2022, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Remand (Joint Motion) which vacated and remanded the August 2021 Board decision for failure to provide an accurate statement of reasons or bases as to whether there was substantial compliance with the Board's October 2020 remand directives. The Court granted the Joint Motion the following week. Specifically, the parties noted that the October 2020 Board remand requested that the examiner "[d]etermine the Veteran's current psychiatric diagnoses, including anxiety disorder and panic disorder without agoraphobia" and "[i]f no diagnosis is made for any of the identified disorders, the examiner must reconcile such a finding with the records pertaining to diagnoses and assessments for anxiety disorder and panic disorder without agoraphobia." The examiner was requested to then provide an opinion for each psychiatric disorder on whether it was at least as likely as not that the disorder manifested in or was related to the Veteran's military service. However, while the Veteran was assessed with an anxiety disorder at the November 2020 VA examination, the examination report and opinion were silent as to a diagnosis of panic disorder without agoraphobia. The examiner concluded that the Veteran did not have more than one mental disorder, and noted he had symptoms of anxiety only. The parties stated that the examiner failed to reconcile her opinion that the Veteran had only one mental disorder with other prior evidence that stated the Veteran had multiple diagnoses, despite the remand directives requesting the examiner do so. Additionally, it was found that the Board did not discuss this potential oversight before relying on the examination as probative. Therefore, the matter was remanded for the Board to provide an adequate statement of reasons or bases, including whether the November 2020 VA examination complied with the prior remand directives and whether it was adequate for adjudication purposes. Since the time of the Joint Motion, the Veteran has submitted additional evidence relating to hid claim, notably including a private psychological assessment from Carla Morgan, Ph.D., which assessed the Veteran with PTSD, major depressive disorder, and alcohol use disorder, and provided opinions that these conditions were more likely than not attributable to his military service. Multiple VA examination previously found the Veteran not to have an active diagnosis of PTSD and, therefore, the Board did not previously address PTSD specifically and its potential relation to the Veteran's military service. The Veteran is not shown to have a PTSD diagnosis made in conformance with 38 C.F.R. § 3.304(f)(3), which requires that the diagnosis of PTSD based on a veteran's fear of hostile military or terrorist activity be diagnosed by a VA psychiatrist or psychologist or one of these who have been contracted by VA. Thus, the Board finds that remand is necessary to obtain an updated VA examination to determine the Veteran's current psychiatric condition, to include whether the Veteran has a present disability of PTSD. Additionally, the Board notes that the record reflects the presence of outstanding private psychiatric treatment records, which are relevant to the Veteran's claim and which are not presently of record. Notably, a July 2015 VA treatment record shows that the examiner wrote regarding the Veteran's mental health history, "None other than being prescribed Escitalopram by his non-VA primary care provider[. H]e has been on the medication for 10-12 years. He says it helps with his anxiety." The Veteran submitted a Disability Benefits Questionnaire from private physician A.S. Khaira, M.D., in October 2014, which indicated that the Veteran was diagnosed with anxiety and prescribed Zoloft; however, it is unclear if Dr. Khaira has personally treated the Veteran's psychiatric disorder(s), or if the Veteran has received mental health treatment from other private sources. Thus, the Board finds that remand is warranted to obtain any outstanding private treatment records. The matter is REMANDED for the following action: 1. Request that the Veteran give VA permission to obtain private treatment records relating to mental health or psychiatric disorders, where the authorization form includes both his signature and the date, to include from: " The non-VA primary care physician who prescribed Escitalopram since the early 2000's; " Dr. A. S. Khaira in Rochester Hills, MI; and " Any other facility where he has received treatment for psychiatric symptoms. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA psychological examination with a qualified clinician to determine the etiology of any present psychiatric disorder, including PTSD. The Veteran should be given the Minnesota Multiphasic Personality Inventory (MMPI) test. Any other psychological testing deemed warranted by the examiner should also be conducted. The claims file must be made available to the examiner for review. The agency of original jurisdiction must provide a copy of the below facts to the examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: " The Veteran served on active duty in the Army from March 1970 to November 1971, to include noncombat service in the Republic of Vietnam from November 1970 to November 1971, where he performed work as a "Stock Red Clerk." " The Veteran has alleged that he suffers from a psychiatric disorder(s) relating to trauma he experienced during his service in Vietnam. He claims that while serving as a supply clerk in Vietnam, he witnessed mortar attacks and was under mortar shell fire. He said he witnessed the bodies of servicemembers killed in such attacks. The Veteran claims that he was in a constant state of fear and that he has experienced anxiety since that time. The Veteran also reported that he began to abuse alcohol during his service as a method of self-medication, which continued for multiple decades thereafter. See VBMS entry with Document Type, "Correspondence," Receipt Date 03/14/2023. " The record reflects varying diagnoses relating to a psychiatric disorder. In October 2014, private provider A.S. Khaira, M.D., diagnosed the Veteran with anxiety and noted that the Veteran was prescribed Zoloft for his symptoms. See VBMS entry with Document Type, "Disability Benefits Questionnaire (DBQ) - Veteran Provided," Receipt Date, 10/28/2014. " On initial VA psychiatric examination in April 2015, the psychiatrist concluded that the Veteran did not have a mental disorder that conformed with DSM-5 criteria. As to in-service stressors, the psychiatrist noted that the Veteran "[s]tates he was not exposed to much action in Vietnam. He was in supply and not allowed to have weapons. They were shelled a few times. One soldier in their unit killed himself. One was shot as he tried to run away. States once they were a watching movie and they got hit and later found a soldier whose head had been blown off." See VBMS entry with Document Type "C&P Exam," Receipt Date 04/13/2015, with "DBQ PSYCH" in the Subject field. " VA treatment records from July 2015 show that the Veteran was diagnosed with unspecified anxiety disorder, panic disorder without agoraphobia, and unspecified trauma and stressor related disorder. The Veteran stated that he developed significant anxiety and depression after his sister died 18 years ago, claiming he was very close to her. He also reported having worked as a supply clerk during service with one year of service in Vietnam. He reported he did not experience direct combat, but that his base received frequent mortar attacks, and he feared for his life. He stated he saw one soldier getting badly injured. He stated he had bad dreams about it when he first came back, but had them now infrequently. The examiner documented that the Veteran's PCLM score was 44, which the examiner noted showed the PTSD criteria were met but that the overall score was below the threshold for PTSD. The Veteran reported he had been prescribed Escitalopram for 10 to 12 years by a non-VA medical provider. See VBMS entry with Document Type, "CAPRI," Receipt Date 12/03/2019, p. 411-413. " On VA psychological examination in November 2020, the Veteran was found to meet the DSM-5 criteria for Anxiety Disorder and no other mental disorder. The examiner documented that the Veteran reported the Vietnam stressor was: "He was in supply and not allowed to have weapons. They were shelled a few times. Heard about soldiers being shot when they tried to run away. Once they were watching a movie and they got hit and later found a soldier whose head had been blown off; across the field there was a bunker with ammo, we were concerned that it might be blown up." See VBMS entry with Document Type, "C&P Exam," Receipt Date 11/25/2020, with "DBQ PSYCH" in the Subject field. " In a separate medical opinion, the psychologist found the Veteran's condition was less likely than not incurred in or caused by the Veteran's military service, stating that the Veteran's anxiety "is at least as likely as not triggered by family discord and divorce in early [20]00's. The [Veteran] has been taking an antidepressant prescribed by PCP since early 00's. Reported ongoing anxiety has been worsened by tremors since 2014 and recent worries about his brother and children and their health, Veteran's wife recently was ill with COVID[-]19 virus. Recent losses include death of ex-wife from heart failure and death of brother from COVID[-]19." See VBMS entries with Document Type, "C&P Exam," Receipt Date 11/25/2020, with "Opinion" in the Subject field. " The Veteran underwent a psychological evaluation from private provider Carla Morgan, Ph.D., in February 2021. The Veteran was assessed with PTSD and major depressive disorder, as well as tobacco use disorder, and alcohol use disorder, both in sustained remission. Dr. Morgan stated that she believes the Veteran's PTSD emerged as a result of the fear of hostile military activity he experienced while serving in Vietnam and that tobacco and alcohol use disorders developed secondary to the onset of his mental health symptoms. See VBMS entry with Document Type, "Medical Treatment Record - Non-Government Facility," Receipt Date 03/14/2023. " The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. After a review of the file, the examiner is asked to answer the following questions: (a) Does the Veteran have a psychiatric disorder, to include PTSD, that is related to his period of active duty from March 1970 to November 1971, to include noncombat service in the Republic of Vietnam from November 1970 to November 1971? Please state upon what facts, medical principles, and/or medical literature support the opinion. (b) If the Veteran is found to have a diagnosis of PTSD, the examiner is asked to clarify if this diagnosis is based on a stressor involving the fear of hostile military or terrorist activities. (c) If the Veteran is not found to have diagnoses of BOTH an anxiety disorder and a panic disorder with agoraphobia, the examiner is asked to reconcile such findings with prior medical opinions that the Veteran had multiple mental disorders, including anxiety disorder and a panic disorder with agoraphobia, as documented within a July 2015 VA treatment record. Please state upon what facts, medical principles, and/or medical literature support the opinion. 3. After completing the above development, readjudicate the claim with review of all evidence received since the last prior adjudication of the Veteran's claim in August 2021. If the benefit sought is not granted, furnish the Veteran with a supplemental statement of the case. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.