Citation Nr: 20078747 Decision Date: 12/14/20 Archive Date: 12/14/20 DOCKET NO. 16-06 999 DATE: December 14, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Army from January 1943 to December 1945. The Veteran died in July 2017 and his surviving daughter has been recognized as the substitute claimant. Thus, she is the appellant in this case. Initially, the Board would like to express its condolences to the appellant for the loss of her father and recognize the valuable service he provided this country in the United States Army. This matter was previously before the Board in June 2017 and was remanded for further development. In the prior remand, the Board requested an addendum opinion from the examiner that conducted the Veteran’s March 2017 PTSD examination. The examiner was directed to provide an addendum opinion to specifically consider whether the Veteran had a diagnosis of PTSD that was caused by the Veteran being exposed to actual or threatened death or serious injury. In March 2019, an addendum opinion was provided which included a negative nexus; however, the Board finds the opinion inadequate as the examiner merely reiterated the same opinions and rationales that was used in his March 2017 examination, and the examiner did not consider the Veteran’s lay statements in either opinion. In the March 2017 PTSD examination, the examiner diagnosed the Veteran with other specified depressive disorder and found that the condition was not related to service. In so finding, the examiner noted that the Veteran’s asserted trauma occurred over 70 years ago; there was no treatment since separation until 2012; the Veteran did not report military trauma to professionals in 2012 and 2013, and the examiner noted that other psycho-social stressors have occurred since 2013 proximate to the documented onset of exacerbation of depression. The Board notes, however, that the absence of documented treatment does not preclude service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, a medical opinion must consider the Veteran’s lay statements. The Board particularly notes that a medical opinion must consider whether the lay statements present sufficient evidence of the etiology of the disability such that service connection could be proven without contemporaneous medical evidence. Buchanan, 451 F.3d 1331, 1336 n.1 (2006). Here, the March 2017 examiner indicated that there was no evidence of treatment until 2012 since the Veteran’s discharge from service; however, the evidence shows that during his 2014 PTSD examination, the Veteran reported seeing a psychiatrist in 1947 as he was having “hallucinations” and awakening from sleep with disturbing dreams. Additionally, in his February 2016 Statement in Support of Claim, the Veteran reported that he was not forthcoming in his past examination, and that he mostly never discusses his memories of WWII to not appear weak, which would seemingly explain his lack of treatment. Moreover, in his May 2015 Notice of Disagreement, the Veteran reported disturbed sleep and noted that he often wakes up at night with memories of combat in the Pacific; and, in his March 2017 PTSD examination, he continued to report sleep impairment and feelings of guilt when people died in his arms during his military service. The Board finds the Veteran’s statements are credible as records substantiate the Veteran’s participation in combat. Specifically, service treatment records (STRs) show the Veteran suffered a concussion and wounds to his head and body as a result of an enemy bomb raid in New Guinea in 1943. In addition, the Veteran reported a stressor contending that his neighbor from Philadelphia was killed during a Japanese bomb raid. This stressor was confirmed in a March 2017 VA Memorandum where the JSRRC Coordinator noted that the service-member’s death was verified and has been accepted as confirmation of the incident described by the Veteran. Therefore, the Veteran’s stressor is conceded. Given the above, the Board finds a new medical opinion is warranted since the examiner did not consider the Veteran’s lay statements of record in the rendered opinion. The Board also notes that VA treatment records from January 1996 to December 1996, December 2001 to October 2003, and from January 1995 to December 1999 have been deemed unavailable. Therefore, the AOJ is reminded that VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule when VA treatment records are unavailable. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a different examiner to determine the etiology of the Veteran’s psychiatric disorder. The Veteran’s claims file, including this REMAND, must be provided to the examiner for review. After review of the record, the examiner must: a) Identify all psychiatric disorders found to be present. b) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not related to the Veteran’s conceded stressor. c) If any psychiatric disorder other than PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder was incurred in service or is otherwise related to any injury, disease, or event that occurred in service. For purposes of providing the medical opinion, the examiner must consider the Veteran’s lay statements and assume he is a credible historian. The examiner must provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 2. After the above development is completed, the claim should be re-adjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.