Citation Nr: A26028811 Decision Date: 03/31/26 Archive Date: 03/31/26 DOCKET NO. 210921-187209 DATE: March 31, 2026 REMANDED Entitlement to service connection for an acquired psychiatric condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1980 to March 1983, from September 1990 to April 1991, and from January 2003 to April 2004, with additional periods of service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran disagreed with the abovementioned rating decision and filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). The Veteran selected the Hearing Lane by submitting notice of disagreement under the Appeals Modernization Act (AMA). 38 C.F.R. § 20.202. In April 2025, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). Accordingly, the Board is limited to review of the evidence in the record at the time of the rating on appeal and the evidence submitted up to 90 days after the Veteran's hearing before the Board. 38 C.F.R. § 20.302. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the above claim. 38 C.F.R. § 20.300. However, as the Board is remanding the claim on appeal to the VA Agency of Original Jurisdiction (AOJ), any such additional evidence may be considered by the AOJ in further adjudication. Regarding the acquired psychiatric condition claim, the Board notes that the Veteran's initial service connection claim was for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD); and the RO denied the claim as entitlement to service connection for PTSD. However, in Clemons v. Shinseki, the United States Court of Appeals for Veteran's Claims (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. 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, and the evidence of record, the Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric condition. As a final preliminary manner, the Board notes that the August 2021 rating decision on appeal found that new and relevant evidence had been received regarding the Veteran's claim for entitlement to service connection for an acquired psychiatric condition and reopened the claim on appeal. This is a favorable finding for the Veteran, and the Board will not readjudicate the issue of whether new and relevant evidence has been submitted. Acquired Psychiatric Condition-Remand The Board shall remand for any pre-decisional error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A and may remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. See 38 C.F.R. § 20.802(a); Green v. McDonough, 37 Vet. App. 127 (2024). Here, remand is required to correct pre-decisional duty to assist errors. Specifically, the record suggests that the Veteran's complete service treatment records (STRs) and personnel files were not of record. The Board notes that in the August 2021 rating decision, the RO, under the evidence reviewed section, indicated a review of the Veteran's service treatment records (STRs) from March 198 to March 1983, September 1990 to April 1991, and from January 2003 to April 2004. No other STRs were indicated as reviewed. However, during the Veteran's April 2025 Board hearing, he testified that he served in the Army Reserves until 2022. Further, the Veteran testified that he was diagnosed with, and treated for, PTSD in the Reserves sometime around 2010. However, these STRs were not of record at the time of the August 2021 rating decision. The Board notes that when obtaining records from a Federal department or agency, the VA must make as many requests as are necessary to obtain the relevant records and will end its search only after it concludes that these records either do not exist, or that further efforts to obtain these records would be futile. See 38 C.F.R. § 3.159(c)(2). The Board notes that no formal finding of unavailability was ever issued regarding the Veteran's STRs and personnel records. This constitutes a pre-decisional duty to assist error. Further, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicolson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While there are VA examinations of record addressing the etiology of the Veteran's claimed psychiatric condition, the Board finds them inadequate for adjudication purposes. Specifically, the Board notes that at the time the VA etiological opinions were issued, the Veteran's Reserve STRs were not of record. As such, the etiology opinions were based upon a review of the record that did not include the Veteran's in-service treatment for PTSD symptoms. Thus, as the opinions are based on an inaccurate medical history, they are inadequate for rating purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "[i]f the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.") (citing Reonal). Thus, upon remand, the AOJ should attempt to locate any outstanding service treatment records and military personnel records. If the records cannot be located, the AOJ should make a formal finding of the unavailability of records and inform the Veteran of possible alternative evidence that can be submitted. Further, the Board finds that the failure to obtain an adequate medical opinion constitutes a pre-decisional duty to assist error. As such, the Board finds the Veteran's claim must be remanded for an examination to determine the etiology of the Veteran's claimed psychiatric disability. As a final matter, the Board notes that during the Veteran's April 2025 Board hearing he raised the theory of entitlement to service connection for his psychiatric condition as secondary to his service-connected asthma, headaches, and sinusitis disabilities. Under the framework of the AMA, the Board's remand authority to correct duty to assist errors is limited to those that existed prior to the AOJ's decision appeal. 38 C.F.R. § 20.802(a). As the assertion of the Veteran's claimed psychiatric condition is secondary to service-connected disabilities was first raised after the AOJ issued the August 2021 rating decision on appeal, the Board may not at this time remand in order to obtain an opinion on that theory of entitlement in this appeal. However, the Board urges the AOJ to review the totality of the evidence and conduct any appropriate development. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding service treatment records and service personnel records, including, but not limited to, all records related to the Veteran's service in the Army Reserves from 2004 to 2022. If any requested records are not available, the record should be annotated to reflect such, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). If any records cannot be obtained, the RO should issue a formal finding of unavailability. The Veteran must be notified of such as provided by 38 C.F.R. § 3.159(f). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology and onset of the Veteran's claimed psychiatric condition. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. Following a review of the relevant records, lay statements, and the medical evidence of record, the examiner is asked to opine on the following: - Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed acquired psychiatric condition is etiologically related to his active-duty service, to include the Veteran's conceded combat stressors. (Continued on the next page) The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gresham, Trevor 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.