Citation Nr: A25035286 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240501-438754 DATE: April 16, 2025 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder (MDD), posttraumatic stress disorder (PTSD), insomnia, and anxiety disorder, is remanded. REASONS FOR REMAND The Veteran had various periods of active duty including from March 2010 to October 2013, August 2017 to September 2018, and September 2022 to July 2023. This matter come before the Board of Veterans' Appeals (Board) on appeal from an April 2024 rating decision by the Department of Veterans Affairs (VA). A supplemental claim rating decision was rendered in April 2024, which indicated that the claim for service connection for MDD remained denied because the evidence submitted was not new and relevant. However, in the body of the decision, the agency of original jurisdiction (AOJ) stated that new and relevant evidence had been received and the claim was reconsidered. As the AOJ conceded that new and relevant evidence had been received in the body of the April 2024 rating decision, and an April 2023 supplemental claim rating decision also found that new and relevant evidence had been received, the Board will proceed as if new and relevant evidence had been received to readjudicate the claim. In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2024 AOJ supplemental claim decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, 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 issue of entitlement to service connection for an acquired psychiatric disorder, to include MDD, PTSD, insomnia, and anxiety disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this issue. 38 C.F.R. § 3.103(c)(2)(ii). The Board notes that the Veteran included the issues of entitlement to service connection for a left and right knee strain in the May 2024 VA Form 10182. However, the Board finds that these issues are not before the Board in the instant appeal. The last rating decision that was rendered related to service connection for left and right knee strain was in July 2019, which is not within a year of the May 2024 VA Form 10182. As such, these issues are not currently before the Board as they are untimely. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal to include entitlement to service connection for an acquired psychiatric disorder to include MDD, PTSD, insomnia, and anxiety disorder. This recharacterization expands the claim under Clemons to include other psychiatric disorders. The Board acknowledges that entitlement to service connection for PTSD, effective April 29, 2024, was granted by the AOJ in a November 2024 rating decision. However, because the claim in the instant appeal pre-dates April 29, 2024, the Board finds that the matter remains on appeal, and it will be adjudicated accordingly. Entitlement to service connection for an acquired psychiatric disorder to include MDD, PTSD, insomnia, and anxiety disorder. The Veteran contends that his currently diagnosed acquired psychiatric disorder is caused by his service-connected degenerative arthritis of the spine as he reports that daily tasks and chores cause him to be irritated and have anxiety. The Veteran also reported that he gets upset with his wife when she asks him to do something that causes discomfort and pain in his back and spine and this in turn causes conflict with his wife that makes him feel extremely depressed. See May 2022 VA Form 21-526EZ. The Board notes that in service treatment records from November 2011, the Veteran reported in a primary care screening that he had little interest or pleasure in doing things over the last two weeks. See May 2022 Service Treatment Records. An additional note from December 2011 indicated that the Veteran reported that over the last two weeks he had been feeling down, depressed, or hopeless, and had little interest or pleasure in doing things. Id. Another service treatment record from December 2011 indicated that a screening exam for depression elicited a positive result for depression and a negative result for PTSD, and a record from a few days later in December 2011 described how the Veteran was experiencing stress due to an interpersonal relationship with a fellow soldier. See September 2018 Service Treatment Records. In March 2012, service treatment records also reflect that the Veteran reported he had an experience so frightening, horrible, or upsetting in the past month that he tried hard not to think about it or went out of his way to avoid situations that remind him of it. See May 2022 Service Treatment Records. In a June 2022 letter, two private certified registered nurse practitioners (CRNPs) diagnosed the Veteran with MDD, insomnia, and anxiety disorder. They reported that the Veteran established care under a psychiatry program beginning in October 2020. A February 2023 VA examiner diagnosed the Veteran with MDD. The examiner opined that the Veteran's MDD was less likely than not incurred in or caused by the Veteran's anxiety during service. The examiner reasoned that there are service treatment records from December 2011 noting anxiety. The examiner further indicated that these records show occupational problems and stress related to a romantic relationship in service and disciplinary action at that time. The examiner discussed that no mental health diagnosis was assigned, and the symptoms of stress were situational. The examiner continued that while the Veteran had situational distress during his service time, it is not sufficient to support a nexus for his current symptoms 12 years after the recorded events. The Board finds the February 2023 examination and opinion to be inadequate. The examination did not note any of the Veteran's other diagnosed psychiatric disorders besides MDD that were evidenced in the June 2022 private letter including insomnia and anxiety disorder. Additionally, the February 2023 opinion is inadequate as it is based on an inaccurate factual premise that the Veteran's current symptoms began 12 years after the noted anxiety in December 2011. The Board notes that the June 2022 private letter directly contradicts the February 2023 examiner's reasoning in the opinion as the CNRPs noted how the Veteran established care for his mental health in October 2020. Additionally, the Board notes that the service treatment records from March 2012 indicate that the Veteran reported that he had an experience so frightening, horrible, or upsetting in the past month that he tried hard not to think about it or went out of his way to avoid situations that remind him of it. It is unclear from this record what the event the Veteran was reporting on, however, this evidence indicates that there may have been another event that occurred other than the interpersonal relationship issue reported in December 2011 that caused the Veteran's mental health symptoms. The February 2023 VA examiner also provided two opinions related to the Veteran's contention that his acquired psychiatric disorder was caused by his service-connected degenerative arthritis of the spine in February 2023 and November 2023. In both opinions, the examiner opined that the Veteran's MDD was less likely than not proximately due to or the result of the Veteran's degenerative arthritis of the spine. In February 2023, the examiner reasoned that the Veteran's degenerative arthritis of the spine was noncontributory to mental health issues at this time, and in November 2023, the examiner reasoned that the Veteran did not report difficulty coping with his degenerative arthritis of the spine upon examination and that his mental health condition is contributed to primarily by current life stressors. The Board finds the February 2023 and November 2023 opinions to be inadequate. The February 2023 opinion is inadequate as it is conclusory and does not include an analysis that the Board can weigh. Further, the November 2023 opinion is inadequate as it does not reconcile the Veteran's inconsistent statements of record. While the examiner mentioned that the Veteran did not report difficulty coping with his degenerative arthritis of the spine, as mentioned above, the Veteran also reported in May 2022 that his degenerative arthritis of the spine causes him to be irritated and have anxiety from daily tasks and chores and causes conflict between him and his spouse that makes him feel depressed. As the November 2023 examiner did not reconcile these inconsistent statements, a remand is necessary. Based on the inadequate examination and opinions of record, a remand is necessary to obtain an adequate examination and opinion. Additionally, there is also no opinion of record, despite evidence in service treatment records reporting that the Veteran experienced mental health symptoms during service, regarding direct service connection and whether the Veteran's acquired psychiatric condition was related to his active service. Finally, the Board finds that the AOJ was aware of the Veteran's period of active duty from September 2022 to July 2023 at the time of the April 2024 rating decision on appeal. See April 2024 Rating Decision Codesheet. Therefore, as the AOJ did not seek to obtain the relevant service treatment records and personnel files relating to this period of active duty prior to issuing the April 2024 rating decision on appeal, the AOJ committed a duty to assist error. On remand, the AOJ is asked to obtain relevant service treatment records and personnel files relating to the Veteran's period of active duty from September 2022 to July 2023. The matter is REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records and personnel records related to his period of active duty from September 2022 to July 2023. 2. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include MDD, PTSD, insomnia, and anxiety disorder. The electronic claims file, to include a copy of this REMAND, must be made available to and be reviewed by the examiner. An examination of the Veteran should be conducted, and the examiner should identify all of the Veteran's acquired psychiatric disorders diagnosed on examination and throughout the claim. As to each diagnosed psychiatric disorder, the examiner must provide an opinion as to: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's acquired psychiatric condition was incurred in or caused by his active service? The examiner is asked to discuss the reported symptoms related to the Veteran's mental health in relevant service treatment records from November 2011 and December 2011. The examiner is also asked to discuss the Veteran's report in a March 2012 service treatment record that he had an experience so frightening, horrible, or upsetting in the past month that he tried hard not to think about it or went out of his way to avoid situations that remind him of it. (b.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the acquired psychiatric condition is proximately due to or the result of his service-connected degenerative arthritis of the spine? The examiner is asked to reconcile the conflicting evidence of record including the November 2023 examiner's statement that the Veteran did not report difficulty coping with his degenerative arthritis of the spine and the Veteran's May 2022 statement that because of his degenerative arthritis of the spine, his daily tasks and chores cause him to be irritated and have anxiety and his inability to perform tasks that cause discomfort in his back and spine causes conflict with his spouse that makes him feel depressed. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Cook, 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.