Citation Nr: 20021894 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-56 997 DATE: March 27, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Marine Corps from March 1971 to March 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from the August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The regulations contain additional provisions addressing PTSD: “Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f). Section 4.125(a) provides that, for VA compensation purposes, the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.), i.e. DSM-IV. 38 C.F.R. § 4.125(a). For claims received by, or pending before the AOJ, on or after August 4, 2014, the provisions of 38 C.F.R. § 4.125 have been amended to require that a PTSD diagnosis conform to the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). The requirement of an in-service stressor is established by the Veteran’s testimony alone if he is shown to have engaged in combat with the enemy. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996). If VA determines the Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required provided that such testimony is found to be “satisfactory,” i.e., credible, and “consistent with the circumstances, conditions, or hardships of service.” See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Veteran seeks service connection for PTSD. The Veteran contends that his in-service stressor was caused by verbal threats of harm coming from inmates that the Veteran was assigned to guard at a correction facility during his time in service. The Board cannot accept this as credible lay evidence relating to the in-service stressor without corroborating evidence because the alleged stressor did not occur during combat. Even if the stressor is conceded to have occurred during service, for service connection to be warranted, a current psychiatric disorder must be found to relate back to such incident, or other incidents of service. The Veteran’s service treatment records (STRs) are silent for any complaint, treatment, or diagnoses of psychiatric disabilities. The Board notes that the Veteran is seeking entitlement to service connected for PTSD. In Clemons, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a psychiatric disorder should include all psychiatric disorders that are raised by the record. 23 Vet. App. at 5-6. In light of this holding, a grant of service connection for one psychiatric disorder (in this case, PTSD), is effectively a grant of all diagnosed psychiatric disorder unless the evidence demonstrates that a separate rating is warranted. See Amberman, 570 F.3d at 1381 (stating that two diagnoses constitute the same disability for purposes of 38 C.F.R. § 4.14). The record reflects a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood. See 05/16/2017 VBMS, C&P Exam. The Veteran was also seen for depression and anger by clinical psychologist JR in June 2017 and diagnosed with “unspecified depressive disorder, unspecified trauma and stress related disorder” by psychiatrist Dr. SY in May 2017. Although other diagnoses have been listed in the past, these are the most current diagnoses. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a “current disability” means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). The May 2017 examiner, Dr. DP, noted symptoms such as depressed mood and anxiety and opined that it is not possible to predict whether Veteran's DSM-5 Diagnosis is related to Military Service beyond chance. Moreover, the examiner opined the Veteran's adjustment disorder diagnosis is more likely related to daily stressors and present health concerns but could not provide an opinion beyond mere speculation as to whether or not this is the result of military service versus present mental and physical stressors and concerns. As explained in Jones v. Shinseki, 23 Vet. App. 382, 390 (2010): [A physician’s] conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. However, a bald statement that it would be speculative for the [physician] to render an opinion as to etiology or diagnosis is fraught with ambiguity. For example, it is not clear whether the [physician] lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit such an opinion, either of which would render the opinion inadequate for resolving the claim. Thus, before the Board can rely on a [physician’s] conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence. (Internal citations omitted). The May 2017 VA examiner provided a negative nexus opinion and stated that this opinion cannot be concluded beyond mere speculation. The examiner provided no further explanation as to why a concrete conclusion cannot be formed. After considering the Veteran’s medical records showing diagnoses for multiple psychiatric disorders, and his statements regarding his in-service stressor, the Board finds that additional efforts should be made to addresses the nature and etiology of the Veteran’s acquired psychiatric disorders, to include PTSD, depression, and anxiety, and whether the Veteran’s currently diagnosed anxiety and depression is related to his in-service stressor. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Determine the nature and etiology of the Veteran’s acquired psychiatric disorders, to include PTSD, depression, and anxiety. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. (a.) The examiner is asked to identify any psychiatric disorder for which the Veteran is currently diagnosed. (b.) For each diagnosed psychiatric disorder, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the Veteran’s psychiatric disorder began during active service or is related to any incident of service. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.