Citation Nr: A25041221 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 241105-488132 DATE: May 6, 2025 REMANDED Entitlement to service connection for an acquired psychiatric disorder, diagnosed as generalized anxiety disorder, claimed as anxiety and depression, is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Navy from June 1965 to May 1969, including service in the Republic of Vietnam. The rating decision on appeal was issued in April 2024 and constitutes a supplemental claim decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2024 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran, or his representative, with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claim for service connection for an acquired psychiatric disorder, 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). The Veteran's claims of entitlement to service connection for anxiety and depression have been recharacterized as entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and depression. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). This matter has been advanced on the Board's docket based on the evidence of record reflecting that the Veteran is of advanced age of 75 years or more pursuant to 38 C.F.R. § 20.800(c). The Board acknowledges that the Veteran has the right to select a different Board review option by submitting a new VA Form 10182 within one year from the date the AOJ mailed the decision on appeal, or within 60 days of the date the Board received his VA Form 10182, whichever date is later, unless the Veteran has requested to waive that right. 38 C.F.R. § 20.202(c)(2); Williams v. McDonough, 37 Vet. App. 305 (June 21, 2024). In a February 2025 letter, the Board advised the Veteran of his right to change dockets under 38 C.F.R. § 20.202 (c)(2), and provided the Veteran with the opportunity to waive such right to request a decision from the Board without delay. No response was received. As the deadline for requesting an AMA docket switch has now elapsed, the Board will proceed with adjudicating the claim on appeal. By way of background, in the April 2024 supplemental claim decision on appeal, the AOJ confirmed the prior denials of entitlement to service connection for depression and generalized anxiety disorder, most recently denied in a November 2022 Higher-Level Review (HLR) rating decision. In readjudicating and denying the Veteran's claim on the merits, the Board notes that the AOJ specifically considered 38 C.F.R. § 3.2501 and found that new and relevant evidence had been received since the previous denial. Pursuant to 38 C.F.R. § 38 C.F.R. § 3.104(c), the Board is bound by these favorable findings absent clear and unmistakable evidence to the contrary. The Veteran has continuously pursued his claim for service connection received June 3, 2021. Service connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Under 38 U.S.C. § 5107 (b), the VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that he acquired a psychiatric disorder, claimed as anxiety and depression, due to his exposure to combat while serving several deployments to the Republic of Vietnam, with symptoms that manifested in service and have continued since such time. See e.g., June 2021 VA Form 21-526EZ; November 2022 HLR - Informal Conference; April 2024 Mental Disorders Disability Benefits Questionnaire. In the alternative, the Veteran contends his psychiatric disorder is secondary to his service connected disabilities. November 2023 VA Form 20-0995. In the April 2024 rating decision, the AOJ favorably found that the evidence established that the Veteran had a current disability diagnosed as generalized anxiety disorder. Pursuant to 38 C.F.R. § 3.104(c), the Board is bound by this favorable finding absent clear and unmistakable evidence to the contrary. Thus, the question becomes whether the current acquired psychiatric disability is related to service. Unfortunately, remand is required before the Board may address the merits of the Veteran's claim. Under the?AMA, the Board may only?remand?an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. See?38 C.F.R. § 20.802(a). Here the Board finds remand is warranted to correct duty to assist errors that occurred prior to the rating decision on appeal. First, VA has a duty to assist claimants in obtaining evidence to substantiate all substantially complete initial claims. 38 C.F.R. § 3.159(c). This duty to assist includes making reasonable efforts to obtain relevant private medical records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(1). In this case, the evidence of record demonstrates that the Veteran has repeatedly reported a longstanding history of medical treatment outside VA Medical Centers for his psychiatric complaints. For example, the Veteran has regularly reported treating with a private primary care provider Dr. S.M. at One Medical for his psychiatric complaints. See e.g. Capri records received March 14, 2024, date of service (DOS) May 2, 2011, November 29, 2011, October 30, 2012, December 2, 2013, November 4, 2014, May 24, 2022, and May 5, 2023. The Veteran also reported being prescribed Tranxene for anxiety in 1980 and in the late 1990's he was prescribed Effexor and Klonopin by third party providers to treat anxiety and depression. Id., DOS January 9, 2023 (reported being prescribed Tranxene by a primary care provider in 1980 and treating at an Emergency Department and with a private primary care provider in 1997); see also September 2021 Mental Disorders Disability Benefits Questionnaire (DBQ). Despite the numerous references to medical treatment for derepression and anxiety with third party providers, there is no evidence that the AOJ fulfilled its duty to assist the Veteran in making reasonable attempts to obtain the treatment records from these providers. The evidence of record in support of the Veteran's claim that his psychiatric disorder is related to his active duty military service include the service treatment records (STRs), which generally support the timeline of the Veteran's contentions. Specifically, prior to service, the Veteran underwent an examination by a licensed physician, who documented a normal psychiatric evaluation. June 1965 Report of Medical Examination. The evidence in favor of the claim also includes the Veteran's candid acknowledgement that while he did report having experienced excessive worry and nervous trouble prior to enlistment, the Veteran had not previously needed medical attention for nervousness or worrying. June 1965 Report of Medical History. The Board observes that when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 C.F.R. § 3.304 (b). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was a preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Further, remand is warranted for the AOJ to obtain an adequate medical opinion. VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence.); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the agency of original jurisdiction and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the United States Court of Appeals for Veterans Claims (CAVC) has jurisdiction, the CAVC will remand the claim directing the Board to address the argument). Once the VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran contends that he has an acquired psychiatric disorder as a result of being deployed during combat service during the Vietnam War, with symptom including anxiety, nightmares, intrusive thoughts, since he separated from service. June 2021 VA Form 21-526EZ; April 2024 Mental Disorders DBQ; September 2021 Mental Disorders DBQ; Capri records received March 14, 2024, DOS May 5, 2023. The Board observes that the service department records confirm that the Veteran served on three deployments on the USS Dale in support of the Vietnam Theater of Operations, as reflected by the Vietnam Service Medal with three bronze stars for service on the Form DD 214. See also Military Personnel Record received September 15, 2023, Administrative Remarks dated May 13, 1969. The evidence of record also reveals that the Veteran was prescribed anti-anxiety medication only after his military service. See, e.g., June 1965 Report of Medical History; September 2021 and April 2024 Mental Disorders DBQ; Capri records associated with claims file March 14, 2024, DOS November 1, 2010; May 22, 2014. The Veteran has described his psychiatric history to his treating provider as "constant nervousness that is exacerbated by situational stress." Capri records received March 14, 2024, DOS May 5, 2023. The Board also notes that the medical evidence of record documents mental health diagnoses including posttraumatic stress disorder (PTSD) and unspecified trauma or stress related disorder, which also conform to the DSM-5 in accordance with 38 C.F.R. § 4.125 (a), with a past medical history of insomnia and depression, treated with prescription medications including Ambien and venlafaxine, as early as November 2010. See Capri records received March 14, 2024, DOS August 17, 2021, September 23, 2021, November 1, 2010. Nevertheless, neither the September 2021 nor the April 2024 medical opinions of record address these other mental health diagnoses of record or provide any reasonable basis for rejecting the mental health disorders diagnosed by the Veteran's other treating providers, or the Veteran's contention that his three deployments to the Vietnam theatre of operations caused or aggravated his psychiatric disorder. Thus, a remand is warranted to obtain an addendum opinion addressing the Veteran's contentions and resolving the conflicting evidence of record regarding nature and etiology of the Veteran's psychiatric disability. The matter is REMANDED for the following action: 1. Request the Veteran submit VA Forms 21-4142/4142a authorizing VA to request copies of any outstanding private treatment records, including from Dr. S.M. and One Medical Primary Care. If the Veteran responds, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. All development efforts with respect to this directive should be associated with the claims file. 2. Thereafter, forward the record and a copy of this Remand to the VA examiner who provided the April 2024 medical opinion, or, if that examiner is unavailable, to another equally qualified clinician, for an addendum medical opinion. If the clinician determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The clinician should address the following: 3. Identify all currently diagnosed psychiatric disorders since the date of claim. Clearly indicate whether at any time since the intent to file was received by VA on April 7, 2021, the Veteran had a depressive disorder, even if such is currently asymptomatic or has since resolved. In so opining, the examiner should specifically address and reconcile any conflict between their opinion and other evidence of records, including the VA Medical Center treatment records documenting diagnosis of depression, PTSD, unspecified trauma or stress related disorder, and insomnia. 4. As to each acquired psychiatric disorder identified, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), that disorder had its onset in or is related to service, to include three deployments to the Vietnam theatre of operations. 5. If not, as to each acquired psychiatric disorder identified, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that disorder is caused by the Veteran's service-connected coronary artery disease status post myocardial infarction, diabetes mellitus, and/or hypertension disabilities? 6. If not, as to each acquired psychiatric disorder identified, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that disorder is aggravated (made worse) by the Veteran's service-connected coronary artery disease status post myocardial infarction, diabetes mellitus, and/or hypertension disabilities? Why or why not? "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is due to or the result of a service-connected disease. If aggravation is found, then the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that such reports must be considered in formulating the requested opinion. If the clinician rejects the Veteran's reports, he or she must provide a rationale for doing so. The clinician is also reminded that the absence of contemporaneous records showing complaints of, diagnosis, or treatment for the condition alone, is insufficient rationale for a nexus opinion. (Continued on the next page) ? The clinician should explain the reasoning for any opinion provided, to include the medical significance of any findings, as adjudicators are precluded from making medical findings. If the clinician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided, identifying precisely what facts could not be determined. In particular, the clinician should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stamm, Haley S. 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.