Citation Nr: 20021948 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 13-35 726 DATE: March 30, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1970. In June 2015, November 2017, and March 2019 the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Veteran contends that he has PTSD due to stressful, combat-related events during active duty in Vietnam, including being exposed to incoming mortars, seeing hooches being blown up, and witnessing Viet Cong attacks. Military personnel records show that the Veteran’s duties in Vietnam included controlling equipment to impregnate transformers. He also served as a field command crewman. Therefore, his reports of witnessing combat-related activity during active duty are conceded. Post-service treatment records show the Veteran was treated for alcohol/chemical abuse during VA treatment in 1996. He was diagnosed with PTSD in 1997. In 2004, he was treated for substance abuse and depression and diagnosed with recurrent depressive disorder with psychotic features. He was also diagnosed with chronic, severe PTSD during VA outpatient treatment in 2004. He has been diagnosed with MDD with psychotic features since 2010, as well as alcohol dependence, cocaine dependence and a personality disorder. He had a positive PTSD screen during VA treatment in 2013. In accordance with the Board’s November 2017 remand, the Veteran was afforded a VA PTSD examination in February 2018. The examiner concluded that the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD. Instead, the examiner diagnosed MDD with psychotic features, a cocaine use disorder anda mild neurocognitive disorder, which the examiner opined were less likely a result of an in-service stressor related event or causally or etiologically related to the Veteran’s military service. Rather, the examiner opined that the Veteran’s diagnosed psychiatric disorders were most likely due to his willful use of substances. The rationale provided was that the Veteran first received inpatient treatment in 1996 (26 years after service), and the admission was due to alcohol and cocaine dependence. In a March 2019 remand, the Board found that the February 2018 examiner failed to provide an adequate opinion as to whether the psychiatric disability identified after service was related to a disease or injury in service or to the Veteran’s reports of continuous symptoms since service. The Board also noted that the examiner did not give an opinion as to the etiology of the PTSD diagnosed earlier during the appeal period, during VA outpatient treatment in 2004 and 2013. In accordance with the Board’s March 2019 remand, the Veteran was afforded another VA PTSD examination in January 2020. The examiner noted that the Veteran’s objective testing was invalid, that the failure of symptom validity measures precluded the valid diagnosis of any mental health disorder and that a review of records revealed that the Veteran is diagnosed with MDD through his current VA mental health providers and the current diagnosis of MDD, recurrent, moderate is made based on his current self-report and records review. The examiner noted that the Veteran had no history of mental health treatment while in service or close in time to his service and that there is no evidence that his current diagnosis of MDD was first manifested in service or is causally related to service. The examiner noted that the Veteran also meet the criteria for Cocaine Use Disorder per his self-report and records review and that there is no evidence this condition was causally related to a service-connected condition. The examiner found that the Veteran is not diagnosed with PTSD by his current treatment providers and did not endorse core symptoms of PTSD at this exam. Again, the Board finds this opinion is inadequate. Initially, the Board notes that although the examiner indicated he has a current diagnosis of MDD, the examiner found the Veteran’s MDD was not related to service. The only rationale given was that no history of mental health treatment while in service or close in time to his service. As indicated in the March 2019 remand, this rationale is inadequate as the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, a remand for a new examination and medical opinion as to the etiology of any current psychiatric disability is necessary. The matters are REMANDED for the following action: 1. The Veteran and his representative should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, including updated VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding records, return the claims file, to include a copy of this remand, to the January 2020 examiner for an addendum opinion. If the examiner who drafted the January 2020 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner shall respond to the following questions: (a) If the examiner finds that the Veteran meets the criteria for a PTSD diagnosis, he/she should specifically identify which stressor or stressors are linked to the PTSD diagnosis. If the examiner determines that the Veteran does not meet the diagnostic criteria for PTSD, he or she should reconcile this finding with the prior diagnoses of PTSD in the record. (b) If the examiner finds that the Veteran manifests an acquired psychiatric disorder other than or in addition to PTSD, he/she should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such currently diagnosed psychiatric disorder was first manifested in service, is causally related to event(s) in service or is otherwise related to service. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri 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.