Citation Nr: 20046435 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 20-09 590 DATE: July 10, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1954 to August 1958. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the June 2017 Department of Veterans Affairs (VA), Regional Office (RO) rating decision. In the March 2020 Form 9, Substantive Appeal, the Veteran elected a hearing. Subsequently, in March 2020, the Veteran clarified that he did not seek a hearing. Generally, service connection requires competent evidence of three things, i.e., a current disability, an in-service event, and a causal relationship between the current disability and the in-service event. 38 C.F.R. § 3.303; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, service connection for PTSD has unique requirements. Specifically, it requires medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which – here – means that PTSD should be diagnosed under 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), credible evidence that an in-service stressor actually occurred, and medical evidence of a nexus between the Veteran’s current symptoms and the claimed stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). For the purposes of service connection based on PTSD or any other disorder, a current disability is the threshold requirement. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In August 2016, the Veteran filed his intent to file a claim. In October 2016, the Veteran filed a claim to service connection for mental condition including PTSD. Along with the October 2016 application, the Veteran provided an internet article describing the in-service event/stressor he experienced. In June 2017, the RO denied service connection for PTSD. The Board acknowledges that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the Veteran’s description of the claim, reported symptoms, and the other information of record. Therefore, in applying Clemons to the present case, the Board construes the Veteran’s October 2016 submission as an application for service connection for an acquired psychiatric disorder, to include PTSD. In October 2017, the Veteran submitted his notice of disagreement along with a lay statement in which he pointed out that, while deployed at Greenham Common Air Force Base in England, he was working near a hanger that exploded, when a fuel tank of a B-47 bomber plane trying to land went through the hanger, causing the Veteran to experience extreme fear. The Veteran states that he believed that a nuclear explosion was going to occur when a second fuel tank caused a fire to engulf a parked B-47 plane that was armed with a nuclear bomb. The Veteran asserts his belief of an impending nuclear explosion increased when the base commander ordered all nonessential personnel to leave the base immediately. The Veteran asserts that he witnessed two service members running toward him. One whose whole upper body was burnt and “what looked like flesh falling off his body” and another service member who “had smoke vapors coming from his head as a result of his hair being burnt off.” The Veteran asserts that “[t]o this day I feel guilty for not doing something for them.” The Veteran’s October 2017 statement suggests that the stressors underlying his claim based on PTSD and the in-service event underlying his claim based on an acquired psychiatric disorder are the same. In January 2020, the RO issued a Statement of the Case denying the Veteran’s claim. In March 2020, the Veteran perfected his appeal to the Board. It is undisputed that the Veteran’s personnel records and service treatment records were destroyed in a 1973 fire. The Board notes that, when a record is destroyed through no fault of the Veteran, VA has a heightened obligation to explain its findings and conclusions if denying a claim, rather than summarily disregarding the Veteran’s position. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In March 2019, the Veteran provided sufficient information to warrant further development as to whether his unit was deployed in the vicinity of where the alleged in-service events/stressors occurred. VA is required to address every legal theory raised by the evidence of record relevant to a Veteran’s position. Further, the Veterans Claims Assistance Act of 2000 and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The latter requires that VA would provide a Veteran with a medical examination or obtain a medical opinion when such an opinion is necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when there is, inter alia, an indication that the disability “may be” associated with the veteran’s service). In the July 2016 VA treatment records, the Veteran was diagnosed as having a depressive disorder. Those records indicate that the Veteran reported traumatic experiences while in active duty. Specifically, the Veteran, inter alia, reported an increase of nightmares and memories of the trauma experienced in service including “I wish I could have helped those who were on fire.” Notably, the Veteran has not received a VA psychiatric examination in relation to his claim. The Veteran’s depression “may be” associated with his service. Accordingly, the Veteran is entitled to a VA examination in connection with his claim based on his depression. Id. In the January 2017 VA treatment records, the Veteran was diagnosed as having major depressive disorder and trauma/stressor-related disorder. The January 2017 VA treatment records describe the Veteran’s in-service stressors similar to those in the Veteran’s October 2017 statement. The January 2017 VA treatment records suggest that the Veteran might have PTSD that might be associated with his service. Accordingly, while the Board regrets further delay, a medical opinion is required before a decision may be rendered as to the Veteran’s claim for service connection for PTSD. The matters are REMANDED for the following action: 1. Seek all records identifying where the Veteran’s unit was deployed from December 1954 to August 1958 using reasonable exercise of diligence from all appropriate domestic and foreign sources. Document all efforts to obtain these records and the responses received from each inquiry. 2. Upon completing the foregoing and any other development necessary, schedule the Veteran for an in person examination by an appropriate VA examiner to determine the nature and etiology of his psychiatric disorder(s). 3. Provide the VA examiner the Veteran’s complete claims file, including this Remand order, and a clear and detailed explanation as to the differences between the requirements applicable to service connection for PTSD and the requirements applicable to service connection for a psychiatric disorder other than PTSD. 4. The VA examiner is requested to identify all of the Veteran’s psychiatric disorders separately. 5. The VA examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s psychiatric disorder other than PTSD is attributable to service and provide a reasoned rationale supporting the VA examiner’s conclusions. The VA examiner is requested to address each such psychiatric disorder separately. 6. The VA examiner is also requested to opine whether the Veteran is diagnosed with PTSD. In the event the VA examiner determines that the Veteran is diagnosed with PTSD, the VA examiner is requested to opine whether it is as least as likely as not (a 50 percent probability or greater) that the Veteran’s PTSD is attributable to service and provide a reasoned rationale supporting the VA examiner’s conclusions. 7. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the aforesaid inquiries cannot be provided without resorting to speculation, the VA examiner is requested to provide an explanation as to why this is so and to clarify what additional development, if any, would permit the requested opinion to be rendered. 8. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claims for service connection for PTSD and for an acquired psychiatric disorder other than PTSD. (continued on the next page)   9. If any benefit sought on appeal remains denied, a Supplemental Summary of the Case (SSOC) should be furnished to the Veteran and his representative, and he and his representative should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.