Citation Nr: 1636357 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 13-17 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2007 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal was previously remanded by the Board in February 2016. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Further development of the appeal is required. Additionally, on remand, any outstanding VA treatment records must be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2014). Supplemental Medical Opinion The Board finds that the November 2013 and April 2016 VA examinations are inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand a supplemental medical opinion should be obtained. First, the record shows that historically the Veteran has reported experiencing nightmares related to his in-service stressor (being threatened by Iranian ships while in the Strait of Hormuz). The November 2013 VA examiner recognized this symptom, however the examiner also noted an inconsistency in that an April 2013 note recorded that the Veteran stated that he does not necessarily recall dreams per se but assumes he is having bad dreams because of the panic, anxiety, and sweatiness when he wakes up. The November 2013 examiner concluded, that "[a]side from nightmares, there is no clear connection with his reported symptoms and his stressful incident." The Board finds that this conclusion is inconsistent and requires clarification; it suggests that the Veteran's nightmares provide a clear connection with his stressful incident. The April 2016 VA examination report did not provide such clarification. Second, the examinations did not discuss certain evidence in support of the Veteran's claim, to include a March 2012 Mayo Clinic report of emergency psychiatric consultation (the Veteran had been increasingly upset about what he witnessed while serving in the Middle East) and a July 2013 statement from a Social Worker at the Minnesota Veterans Home - Hastings (Veteran "reported depressive symptoms and PTSD like features since returning from deployment in 2009"). The Board also recognizes other pertinent evidence that requires discussion, such as the post-discharge onset of the Veteran's polysubstance abuse and failing classes during his two semesters of college. Remand is required so that these pieces of evidence may be addressed. Representative's Argument At this point, the Board also finds it appropriate to address one of the Veteran's representatives' arguments presented in the May 2016 Supplemental Statement of the Case (SSOC) Response. Specifically, the representative alleged that the April 2016 VA examiner's finding that the Veteran's in-service stressor was stressful but not traumatic contradicted a prior VA finding that the stressor was verified and conceded. The representative also cited to Zarycki v. Brown, 6 Vet. App. 91 (1993) to support the proposition that whether an event qualifies as a "stressor" is a legal determination and not a medical one. A review of the law and regulations pertaining to service connection for PTSD is of assistance. 38 C.F.R. § 3.304(f) states that in order to obtain service connection for PTSD, the evidence must meet three elements: 1) a clear, current diagnosis of PTSD; 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Furthermore, §§ 3.304(f)(1) - (5) discuss what evidence is necessary to establish the occurrence of the in-service stressor. (Emphasis added.) Thus, the Veteran's representative is generally correct in citing to Zarycki to support the proposition that the determination of whether an event qualifies as a stressor is a legal, not medical, one. However, a confirmed event may qualify as a "stressor" and yet still not be of such gravity to support a diagnosis for PTSD. See Zarycki, 6 Vet. App. at 98-99 ("Once the occurrence of a stressful episode is established, it then must be determined whether the claimed stressful event was of sufficient gravity to support a diagnosis of PTSD."). The gravity of an established stressor and whether it is sufficient to support a mental health diagnosis of PTSD is necessarily a medical determination, not a legal one. Regarding the evidence necessary to establish the occurrence of the in-service stressor, § 3.304(f)(3) provides that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, then, in the absence of clear and convincing evidence to the contrary and provided the claimed stressor is consistent with the places, types and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed stressor. (Emphasis added.) With this background in mind, the Board turns to a review of the previous adjudicative opinions issued to the Veteran. It finds that in a July 2014 SSOC, the occurrence of the in-service stressor was conceded. Specifically, the RO wrote that "[t]he evidence now shows that your lay testimony is adequate to establish the occurrence of your claimed stressor, and the claimed stressor is consistent with the places, types, and circumstances of your service." Thus, the RO determined that the evidence was sufficient to establish the occurrence of the in-service stressor pursuant to § 3.304(f)(3). Significantly, it was not determined that the in-service stressor was of such gravity that it was sufficient to support a diagnosis of a mental health condition. Thus, insofar as there may be an established "law of the case" pertaining to the in-service stressor, the Board finds that it has only been conceded that the Veteran's in-service stressor actually occurred. See, generally, Johnson v. Brown, 7 Vet. App. 25, 26 (1994) ("Where a case is addressed by an appellate court, remanded, then returned to the appellate court, the 'law of the case' doctrine operates to preclude reconsideration of identical issues."); Browder v. Brown, 5 Vet. App. 268, 270 (1993). It has not been legally found that the in-service stressor is sufficient to support a diagnosis of PTSD or that it is sufficient to act as an etiological link between the Veteran's current mental health symptoms and his active service. Accordingly, the Board finds that the April 2016 VA examiner's statements pertaining to the gravity of the established stressor did not contradict the prior VA findings. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain a VA medical opinion pertaining to the etiology of the Veteran's mental health problems. The opinion should be authored by the April 2016 VA examiner, if possible. If the April 2016 examiner is not available, then the opinion should be authored by a different VA psychologist. The entire claims file must be reviewed in conjunction with the writing of the opinion. A copy of this REMAND must be included with the claims file. For each diagnosed mental health disorder, the author is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during or is otherwise related to his active military service, to include the Iranian boats incident. In answering this question, the author must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. The Veteran's history of nightmares must be addressed, as well as the contradictory finding of the November 2013 VA examination that stated: "[a]side from nightmares, there is no clear connection with his reported symptoms and his stressful incident." The Board finds that this conclusion is inconsistent and requires clarification; it suggests that the Veteran's nightmares provide a clear connection with his stressful incident. Other evidence in support of the claim must also be discussed, to include a March 2012 Mayo Clinic report of emergency psychiatric consultation (the Veteran had been increasingly upset about what he witnessed while serving in the Middle East) and a July 2013 statement from a Social Worker at the Minnesota Veterans Home - Hastings (Veteran "reported depressive symptoms and PTSD like features since returning from deployment in 2009"). The author should also discuss the Veteran's history of substance abuse and failing classes during his two semesters of college, and consider whether they indicate an underlying psychological problem that may have resulted from service. The author should discuss what evidence he finds persuasive or unpersuasive, whether the Veteran had other risk factors for developing his mental health disorder(s), and whether there was anything particularly unusual in the manner that the mental health disorder(s) developed. See Stifel v. Nicholson, 21 Vet. App. 120, 124 (2007). The author may also discuss the perceived credibility of the Veteran's statements and/or medical history. A complete explanation must be provided for all opinions offered. 3. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).