Citation Nr: 20043773 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 12-10 842 DATE: June 29, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran had active military service from October 1999 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) from the September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran appeared at an October 2013 hearing before Veterans Law Judge Wayne Braeuer. In February 2017, the Veteran was sent a letter asking if he would like another hearing as VLJ Braeuer was no longer employed by the Board (due to retirement). Subsequently, the Veteran requested to have another hearing, which was conducted in August 2018, before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that his current acquired psychiatric disorders are related to a traumatic event he experienced during active service. Specifically, the Veteran has stated throughout the record that while he was in service, he witnessed the severe injury or possible death of a fellow airman who was struck on the side of the head by the boom of a front loader. This matter was previously before the Board in February 2019 and the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder was denied. The Veteran appealed this decision to the Court of Veterans Appeals (Court). In January 2020, the Court issued a joint motion for remand (JMR). Specifically, the Court found that the Board failed in its duty to assist the Veteran in two regards. First, the Court stated that a remand is required for a new records search through all relevant agencies for the Veteran’s relevant time-period, including November 2000, to verify his reported stressor. In particular, the Court noted that VA’s efforts to verify Appellant’s claimed stressor failed to include the appropriate date-range in its records request. In August 2018, Appellant testified before the Board that the incident where he witnessed a fellow airman seriously injured from a blow to the head from a front loader occurred in November 2000. (R. at 532). However, the date-range search from the Joint Services Records Research Center (JSSRC) and the Air Force Historical Research Agency (AFHRA) do not coincide, undermining the reliability of the “Formal Finding” that Appellant’s reported stressor could not be corroborated. (R. at 2280-83 (June 2015 administrative decision)). While the JSRRC records search included the period from October through December 2000, (R. at 2281, 2363 (January 2017 web document)), the scope of the AFHRA search covered the period from 2001-02, after Appellant’s reported stressor occurred. (R. at 2282 (June 2015 VA administrative decision misidentifying the May 29, 2015, response from AFHRA as an Air Force Office of Special Investigations (OSI) search), 2285 (May 2015 email correspondence from AFHRA noting referral information about OSI)). Accordingly, remand is required for a new records search through all relevant agencies for the relevant time-period including November 2000. Second, the Court stated that the August 2016 VA addendum opinion was inadequate because it failed to consider Appellant’s lay statements noting his in-service treatment for depression and the account of his stressor. (R. at 3280 (May 2011 statement regarding witnessing fellow airman’s injury), 3300 (May 2011 statement noting in-service counseling for depression), see also (R. at 3527 (July 2004 in-service depression screening), 3029 (post service March 2005 addendum noting positive depression screen)). Finally, the Court noted that the Veteran testified during his August 2018 Board hearing that he received several electrical shocks over 240 volts that he contends contributed to his psychiatric problems. The Court stated that remand is therefore required for a new examination or opinion addressing Appellant’s lay statements concerning his alleged stressors, to include the electrical shocks he received while on active duty, and which considers the in-service positive depression screen. As a side note, the Board notes that the the March 2005 “addendum” referenced in the JMR is not a service medical record (as the Veteran’s service ended in 2004), but instead apparently refers to VA treatment records contained in Capri and added to the claims file in March 2012. Therefore, the Board finds that a remand in accordance with the January 2020 Court JMR is warranted. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressors, including witnessing the severe injury or possible death of a fellow airman who was struck on the side of the head by the boom of a front loader, specifically for the time period of November 2000. If more details are needed, contact the Veteran to request the information. 2. Schedule the Veteran for an examination to provide an opinion as to the nature and etiology of any diagnosed acquired psychiatric disorder that has been present during the period on appeal. After reviewing the record, to include the Veteran’s lay testimony, the examiner is asked to address the following: Is it at least as likely as not (a 50 percent probability or greater), that any diagnosed acquired psychiatric disorder, was caused by service, or is otherwise related to the Veteran’s military service? All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner must discuss the Veteran’s account of the electrical shocks he reportedly received while on active duty, and consider the in-service depression screen, and the March 2005 VA depression screen which was described as positive. The VA examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran’s service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. (Continued on the next page)   3. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.