Citation Nr: A25035320 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240529-444397 DATE: April 16, 2025 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to September 1979. In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Although the Veteran initially requested Higher-Level Review when submitting the January 2023 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. Therefore, the Board may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) 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 claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Veteran seeks service connection for an acquired psychiatric disorder, contending that it is related to his active-duty service, to include as due to an in-service military sexual trauma (MST) or, alternatively, as a result of his service-connected disabilities. As a preliminary matter, the Board is obligated to construe a claim for a psychiatric disorder liberally to include all psychiatric disorders found. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by claimant's description of the claim, symptoms, and other information of record). Therefore, the Board has recharacterized the Veteran's claims of entitlement to PTSD to an acquired psychiatric disability, to include the various mental health diagnoses of record. VA treatment records show various mental health diagnoses, including adjustment disorder with depressed mood, major depressive disorder, cocaine-induced and alcohol-induced mood disorder, cannabis-induced anxiety disorder, cocaine-induced psychotic disorder with hallucinations, and borderline personality disorder. See VA Treatment Records, dated August 2016; February 2016 VA Examination. In connection with his claim, a VA medical opinion was provided in January 2024 as to whether the Veteran's psychiatric disability is due to or the result of his service-connected disabilities. The VA examiner expressed his desire to interview the Veteran and thought that the request for his opinion without seeing the Veteran was "highly irregular." He noted that VA insisted a review of the record was sufficient. The VA examiner concluded that the opinion "was based solely on a records review and should be considered tentative without benefit of a recent evaluative interview." The VA examiner opined that "there is no evidence from available records to conclude that chronic pain and or its treatment is the most parsimonious explanation for [the Veteran's] mental health conditions." The January 2024 VA medical opinion is inadequate for two reasons. First, it is now well settled that, "[o]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination or opinion is adequate where, among other things, "it is based upon consideration of the veteran's prior medical history and examinations." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) Additionally, the United States Court of Appeals for Veterans Claims has stated that "[w]hen the Secretary's duty to provide a medical opinion is triggered, this duty includes the requirement that the Secretary provide reasonable tests and other examinations necessary to render a meaningful medical opinion." Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). In fact, [w]here the medical examiner specifically states that a medical opinion cannot be provided without information not currently available, the Secretary's duty to assist requires that the Secretary determine whether that information may be reasonably obtained, and if so, make efforts to obtain it and seek an additional medical opinion which considers the relevant information. Id. Here, the record unequivocally establishes that the examiner who provided the January 2024 medical opinion, was unable to provide the requested opinion without examining and interviewing the Veteran. Indeed, the examiner stated that she was only able to provide a "tentative" opinion, expressing her desire to interview the Veteran. The examiner noted that her opinion was "being offered at the insistence of the VA's determination that a record review alone was sufficient." It is clear that the examiner did not believe a record review alone was sufficient to provide the requested opinion. Hence, because the examiner specifically stated that a medical opinion could not be provided without an examination of the Veteran and, quite obviously, an examination of the Veteran can be reasonably obtained, the Board finds that the AOJ's failure to provide an examination and opinion is a pre-decisional duty to assist error warranting remand. See Daves, 21 Vet.App. at 51; Barr, 21 Vet.App. at 311; see also 38 C.F.R. § 20.802(a). Second, with regard to the issue of entitlement to service connection on a secondary basis, the January 2024 medical opinion does not address aggravation. In that regard, the Veteran may establish entitlement to secondary service connection if the current disability was (1) caused by a service-connected disability; or (2) aggravated by a service-connected disability. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The disjunctive language used in the regulation means that both causation and aggravation must be addressed when conducting a secondary service connection analysis in any claim for benefits, and both must be addressed in any medical opinion concerning secondary service connection. Id.; El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). However, in this case, the VA examiner only responded to the causation question and did not opine whether the Veteran's psychiatric disability was aggravated by his service-connected disabilities. This deficiency in the medical opinion also constitutes a pre-decisional duty to assist error. See 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's acquired psychiatric disability. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by, the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should identify the psychiatric diagnoses present. For each disability identified, the examiner is asked to respond to the following: (a.) Whether it is at least as likely as not that the Veteran's psychiatric diagnosis was caused or incurred as a result of the Veteran's active-duty service, including his statements of an in-service MST. (b.) If not related directly to service, is it at least as likely as not that the Veteran's psychiatric diagnosis is due to or the result of a service-connected disability or disabilities? (c.) If not due to or the result of a service-connected disability or disabilities, is it at least as likely as not that the Veteran's psychiatric diagnosis was aggravated by a service-connected disability or disabilities The examiner is advised that a finding that the disability is aggravated due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Fam, 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.