Citation Nr: 20052963 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 11-26 071 DATE: August 10, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD)), to include as secondary to the Veteran’s service-connected low back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1983 to January 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at a June 2014 Travel Board hearing. A transcript is of record and associated with the claims file. The hearing was before a Judge that is no longer available. In February 2020, the VA notified the Veteran, he was given the opportunity to request another hearing. The Veteran waived his right to an additional Board hearing in March 2020. The procedural posture of the matter reflects that in a January 2002 rating decision VA denied entitlement to service connection for posttraumatic stress disorder (claimed as a nervous disorder with loss of memory). The Veteran did not appeal the denial of benefits, which is final. In May 2016, the matter came before the Board at which time the Board denied the reopened claim. The Veteran appealed to the Court of Appeals for Veteran’s Claims (CAVC), and the VA and the Veteran agreed to a Joint Remand. In a June 2017 CAVC order, the parties agreed that the May 2016 Board decision failed to consider and discuss relevant evidence of record. Specifically, the Board failed to discuss an in-service treatment record pertaining to relevant symptoms, failed to give the Veteran adequate notice of a VA scheduled examination, failed to summarize, address and verify each of the Veteran’s purported stressors, and failed to address favorable medical evidence. Entitlement to service connection for an acquired psychiatric disorder (claimed as PTSD), to include as secondary to the Veteran’s service-connected low back disability, is remanded. After the CAVC Joint Remand, in August 2017, the Board remanded the matter. The Board directed the RO to review the file, and prepare a summary of each claimed stressor, to include documentation of all efforts undertaken to try and verify each claimed stressor. The Board directed that the RO must forward all to Joint Services Records Research Center (JSRRC) in order that they might attempt to provide any information which could corroborate the Veteran’s purported stressors. The Board directed the RO to thereafter schedule the Veteran for a VA psychiatric examination, to be conducted by a board of two VA psychiatrists. Additionally, the Board directed that should it be determined that the Veteran does, in fact, suffer from an acquired psychiatric disorder, but that such disorder is unrelated to his period of active military service, the examiners must opine as to a nexus of secondary service-connection to the Veteran’s low back disability. Since the August 2017 Board remand, excerpts from publications regarding the Operation Agent Fury in Grenada in 1983 have been associated with the claims file. The RO also sent the Veteran development letters in September 2017, October 20017, and October 2018 to the Veteran asking him for specific details of the purported stressors. Besides the subsequent development letter and the publication excerpts, there have been no steps taken to verify the purported stressors after remand, including a prepared summary of the Veteran’s reported in-service events. Although the remand directed the RO to forward all the purported stressors to JSRRC in order that they might attempt to corroborate the purported stressors, but this action does not appear to have been taken. Moreover, the Board directed the RO to schedule a VA examination to obtain opinions, but the record does not reflect such action has been taken. Thus, a remand is warranted as the RO’s is not in substantial compliance with the Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran, through his attorney, submitted an April 2020 favorable private medical opinion. As the Board explains, the basis for the favorable opinion in establishing an in-service stressor cannot be corroborated on lay testimony alone, and the opinion is inadequate. The examiner diagnosed the Veteran with PTSD, with dissociative symptoms, with delayed expression. The examiner opined that the Veteran’s symptoms began in service and within six to twelve months of discharge, he had developed the full constellation of PTSD symptomatology. The examiner indicated that the Veteran experienced an initial stressor during his military service when he was assaulted during basic training which led to signs of incipient depression including changes in eating and weight gain. The examiner further indicated that the Veteran’s safety was again imperiled during his deployment to Germany, where he experienced a drive-by shooting and the death of a fellow soldier, potentiating his development of trauma-based symptomatology. In May 2020, the Veteran, through his attorney, indicated that there is sufficient evidence of record to corroborate the Veteran’s in-service stressors and support a finding that his PTSD is related to military service and waived the Veteran’s right that he might have for the Board to remand his case for additional development. First, the Board notes that even if the Veteran waives his right to compliance with the Board remand, a remand by CAVC or the Board imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall, 11 Vet. App. at 271. Second, the Board notes that service connection for PTSD is established by the showing of three elements: (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. The Board further notes that for the second element, lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by “credible supporting evidence.” Cohen v. Brown, 10 Vet. App. 128, 140 (1997). However, there are four instances of which lay testimony alone may be sufficient: 1) PTSD diagnosed in service with stressor related to that service; 2) “combat Veteran” under 38 U.S.C. § 1154 with stressor related to combat; 3) stressor related to fear of hostile military or terrorist activity; and 4) prisoner-of-war under 38 C.F.R. § 3.1(y) with stressor related to prisoner-of-war experience. See 38 C.F.R. § 3.304(f). PTSD based on personal assault is adjudicated in accordance with 38 C.F.R. § 3.304(f)(5), of which there is a heightened burden of notification. The Board notes that in the Veteran’s case, he raises five purported stressors. To summarize the Veteran’s claimed stressors, the Veteran contends that 1) in October 1983 while on maneuvers in Grenada, his unit encountered a firefight with a Cuban irregulars of which the Veteran’s Commander, along with the Veteran’s buddy were both killed in this incident, 2) a drive by shooting at Camp Pierre, 3) a knife fight involving Turkish nationals while leaving a café in West Germany, 4) a personal assault in a shower in the spring of 1983 and 5) his Jeep flipping over downhill in the spring 1986. Regarding the second element of establishing service connection for PTSD, when lay testimony alone is sufficient to establish that a stressor occurred, the record does not reflect that the Veteran was diagnosed with PTSD while in service. The record does not demonstrate that the Veteran is a combat Veteran. 38 U.S.C. § 1154(b). In the case of a stressor related to a fear of hostile military or terrorist activity, a VA (or VA-contracted) psychiatrist/psychologist must confirm the stressor is adequate to support a PTSD diagnosis. See Nat’l Org. of Veterans’ Advocates v. Sec’y of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012), which a VA examiner has not yet done. Nor does the record demonstrate that the Veteran is a prisoner of war. 38 C.F.R. § 3.1(y). Hence, in this case, lay testimony alone is not sufficient to establish that the purported stressors occurred and must be corroborated by credible supporting evidence. Cohen, 10 Vet. App. at 142. Thus, additional development is necessary. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records and associates those records with the claims file. 2. The RO shall review the file, and prepare a summary of each claimed stressor, to include documentation of all efforts undertaken to try and verify each claimed stressor. These claimed stressors include, but are not limited to, an attack in Grenada, a purported August 1985 drive-by shooting, a purported knife fight with Turkish nationals, a purported 1986 vehicle rollover, and a purported shower assault. The RO shall adjudicate PTSD based on personal assault in accordance with 38 C.F.R. § 3.304(f)(5). For each claimed stressor that has yet to be investigated the RO must, even if it appears that such stressors not verifiable, forward the summary and all associated documents to the JSRRC in order that they might attempt to provide any information which could corroborate the Veteran’s alleged stressors. The RO must specify any and all stressors which it has independently verified. As this Veteran did not serve in combat any examining psychiatrists must be instructed that the Veteran’s statement alone cannot establish the occurrence of a non-combat stressor. 3. Thereafter, schedule the Veteran a VA psychiatric examination, to be conducted by a board of two VA psychiatrists who have not heretofore seen or examined him. The examiners must specify in their report that the entire claims file has been reviewed. Attention is drawn to and the examiners must address the October 1986 separation report of medical history, and the January 1996 VA Tuscaloosa and April 2020 private favorable medical opinions. An in-person examination may be scheduled if the examiner deems it necessary and or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be added to the claims file showing that notice scheduling the examination was sent to his last known address. It should also indicate whether any notice sent was returned as undeliverable. The Veteran is advised that it is his responsibility to keep VA appraised as to his whereabouts, and that VA has no duty to move heaven and earth to find him. The examination report shall reflect a review of pertinent material in the claims folder. Moreover, the examiners must integrate all prior psychiatric findings and diagnoses with the current findings to obtain an accurate picture of the nature and etiology of any diagnosed psychiatric disorder. Following the examination and a careful review of the record the examiners must offer a joint opinion addressing, for each diagnosed psychiatric disorder, whether it is at least as likely as not that the disorder had its origin during, or is in some way the result of, an incident or incidents of the Veteran’s period of active military service, to include complaints of depression while in service in 1985 and 1986. Should it be determined that the Veteran does, in fact, suffer from an acquired psychiatric disorder, but that such disorder is unrelated to his period of active military service, the examiners must opine whether any diagnosed psychiatric disorder is at least as likely as not proximately due to, the result of the Veteran’s service-connected low back disability; or aggravated by the Veteran ’s’s service-connected low back disability. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran’s claims folder. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.