Citation Nr: A25035210 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240526-443671 DATE: April 16, 2025 REMANDED Service connection for anxiety. ? REASONS FOR REMAND The Veteran served on active duty from June 2017 to November 2021. This matter is on appeal from an August 2023 rating decision. In a May 2024 notice of disagreement (NOD), the Veteran elected the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review with the August 2023 decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). Service connection for anxiety. The Veteran contends that he has anxiety related to active duty. Specifically, the Veteran contends that he started to experience anxiety after being recalled while on leave to deploy, and that anxiety increased after deployment and another recall. The Veteran also claims that his anxiety increased even more after hitting his head during training. See May 2022 Fully Developed Claim. Furthermore, the Veteran stated that he worked with a soldier who had a substance abuse disorder with suicidal ideations. The Veteran indicated that he stayed up with this soldier for months to ensure the soldier's safety. As a result, the Veteran reported having intrusive thoughts that something bad was going to happen and experienced panic attacks. See February 2023 VA treatment records. Initially, in the August 2023 rating decision, the AOJ favorably found that the Veteran has anxiety. During a March 2023 VA mental health assessment, the Veteran was diagnosed with general anxiety disorder. The Board is bound by this?prior favorable finding, which was not clearly and unmistakably erroneous. 38 C.F.R. § 3.104(c). The Veteran was afforded a May 2022 VA examination in connection with the claim. The examiner determined that the Veteran does not have an anxiety diagnosis, and thus an opinion addressing the nature and etiology of the Veteran's claim was not warranted. The Veteran was also receiving VA treatment during the period on review. As stated above, during a March 2023 VA mental health assessment the Veteran was diagnosed with general anxiety disorder. In its August 2023 rating decision, the AOJ determined that service connection is not warranted because the evidence of record fails to establish that the Veteran suffered an event, injury, or disease in-service, and thus, no nexus has been established. The AOJ indicated that the Veteran's service treatment records are absent of complaints, treatments, or diagnoses of any mental condition. The Board finds that the claim must be remanded to correct the duty to assist error that occurred prior to the rating decision on appeal. First, after confirming the Veteran's anxiety diagnosis, the AOJ failed to afford the Veteran a new VA examination and opinion addressing the nature and etiology of his diagnosed anxiety. Additionally, in making its determination, the AOJ relied on an absence of documented evidence during and after service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during or after service, or why an absence of documented treatment or symptoms (as opposed to undocumented symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Furthermore, the AOJ failed to consider the Veteran's lay assertions regarding the onset, progression, and cause of his anxiety. See Miller v. Wilkie, 32 Vet. App. 249, 254 (2020); see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding that an examiner impermissibly ignored the appellant's lay assertions). As such, remand is required to remedy the pre-decisional duty to assist errors and to afford the Veteran a VA examination and medical opinion to determine the nature and etiology of his diagnosed anxiety. 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: Schedule the Veteran for an examination by a psychiatrist to determine the nature and etiology of the Veteran's diagnosed anxiety. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner should state whether it is at least as likely as not that the Veteran's anxiety had its onset during service or is etiologically related to service. The examiner must address in the opinion any relevant lay statements of record. (Continued on the next page) ? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptoms did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. A rationale should be provided for opinions expressed. If an opinion cannot be offered without resorting to speculation, the reason for this should be fully explained in the opinion. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fyffe, Michael C. 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.