Citation Nr: 18149923 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-36 617 DATE: November 14, 2018 REMANDED Entitlement to service connection for acquired psychiatric disorder to include PTSD, adjustment disorder, and unspecified anxiety disorder is remanded. REASONS FOR REMAND The Veteran served in the Army from June 1975 to September 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for acquired psychiatric disorder to include PTSD, adjustment disorder, and unspecified anxiety disorder is remanded. To establish a service connection for Post-Traumatic Stress Disorder (PTSD), a veteran must establish (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. Without proof of a present disability, there can be no claim, regardless of injuries or diseases sustained during active service. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran served during the Peacetime and the Gulf War Era, including in Southwest Asia and duty in Somalia described as an imminent danger area, and as such may qualify under the relaxed stressor fear of hostile action criteria. To qualify, a Veteran must have experienced, witnessed, or have been confronted with an event or circumstance that involved: (1) actual threatened death or serious injury; or (2) a threat to the physical integrity of the Veteran or others; and (3) the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). The event or circumstance in service must have been perpetrated by either a member of an enemy military or by a terrorist. Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013). A veteran must establish medical evidence establishing a current diagnosis of PTSD, which must conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association. It can be presumed that mental health professionals are experts, and know to take into account the relevant DSM when providing a diagnosis of PTSD. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). As a rule, the DSM-IV will apply to claims that were initially certified for appeal to the Board, CAVC, or the Federal Circuit prior to August 4, 2014. All applications for benefits that were certified on or after August 4, 2014 will use the DSM-5. If VA believes the diagnosis is not based on the relevant DSM criteria, VA must return the examination report to the examiner to explain how the diagnosis was substantiated. 38 C.F.R. § 4.125. In the case of Veterans whose stressors are based on the fear of hostile action criteria as noted above, the diagnosis and nexus to service must be made by a VA psychologist or psychiatrist. Here it is unclear if the Veteran has a current diagnosis of PTSD. The Veteran has attended a number of group psychotherapy meetings at the Biloxi VA facility from 2012 through 2018. Many of these therapy meetings are guided by psychologists and social workers, and they often diagnose the Veteran with PTSD as a member of that group. At least one of these group psychotherapy sessions gives a “diagnostic impression” using the DSM 5 criteria, stating that the Veteran may have “unspecified trauma and stressor-related disorder, [and] alcohol use disorder.” That same psychiatrist offered the Veteran a VA Examination in May 2013, and found diagnoses of PTSD and alcohol abuse using the DSM-IV. While the DSM-IV is no longer in use, there is no evidence that either the VA examiner or the private physician were not competent or credible. Nieves-Rodriguez, 22 Vet. App. 295. Despite those accounts of the Veteran having a current diagnosis of PTSD, other reports do not reach the same conclusion. The Veteran received a Mental Health examination in October 2012, and a current diagnosis of PTSD was not found using the DSM-IV criteria. And while the DSM-IV is no longer in use, this report also stated that “[e]xtensive review of the Veteran’s CRPS records reveals that his previous diagnosis and treatment for his symptoms of PTSD by the Biloxi VA psychiatrist only has been based on the Veteran’s subjective report of symptoms with no use of objective measures to validate this as the appropriate clinical diagnosis.” Again, there is no evidence that the VA examiner was not competent or credible, and as that report was based on accurate facts and objective examinations, the Board finds it is entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. The most recent VA examination took place in September 2015 and found that the Veteran did not have a current diagnosis of PTSD. This evaluation used the proper DSM-5. This VA examination found no such diagnosis, and took into account the Veterans VA e-folder and VA treatment records. Despite that lack of a PTSD diagnosis, the examiner found relevant in-service stressors, and symptoms of anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficult in establishing/maintaining effective work and social relationships. Although the September 2015 VA Examination in September 2015 found no current diagnosis of PTSD, the examination did note an “unspecified anxiety disorder” existed, yet made no mention of adjustment disorder. This potential psychiatric disorder was not given adequate discussion. There was also no rationale provided as to why this unspecified anxiety disorder either was, or was not, due to the Veteran’s service. Due to the contradicting diagnoses and the unclear symptomatology exhibited by the Veteran, the Board is unable to make a determination as to that matter of whether or not the Veteran has a current diagnosis of PTSD, adjustment disorder, and/or an anxiety disorder. The matter is remanded for a VA psychiatric examination to determine the nature and etiology of any PTSD, anxiety disorder, and/or adjustment disorder. Because the Veteran’s entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment and/or private treatment records. Associate such with the Veteran’s electronic claims file. 2. Thereafter, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD, anxiety disorder, and/or adjustment disorder. Ensure that that psychiatric examination uses the DSM-5. The examination must include a review of the Veterans claims file, and should note that this case review took place. After a review of the claims file and an examination of the Veteran, the examiner must respond to the following: (a.) Does the Veteran have a current diagnosis of any psychiatric disorder? If the Veteran is diagnosed with PTSD, anxiety disorder and/or adjustment disorder, the examiner must explain how the diagnostic criteria are met and provide a full rationale of the conclusion reached. (b.) If PTSD is diagnosed, is it at least as likely as not related to a verified in-service stressor? That in-service stressor can and should include analysis related to the fear of hostile military or terrorist activity. To qualify as an in-service stressor for PTSD, the Veteran must have experienced, witnessed, or been confronted with an event or circumstance that involved: (1) actual threatened death or serious injury; or (2) a threat to the physical integrity of the Veteran or others; and (3) the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (c.) If a psychiatric disorder other than PTSD is diagnosed, to include anxiety, is it at least as likely as not related to the Veteran’s service? A full and complete rational of this opinion is required. The examiner is reminded that the term “as likely as not” means that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale for the opinion must be provided. Review of the entire claims file is required. Use of the DSM-5 is required. 3. Readjudicate the Veteran’s claims after ensuring that any other appropriate development is complete, is warranted. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files is returned to the Board for further appellate action. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel