Citation Nr: 21001064 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 03-28 094 DATE: January 6, 2021 REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, alcohol dependence (in remission), and a personality disorder, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1986 to January 1990, and January 1992 to March 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2000 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of the case is detailed in the Introduction section of the August 2017 Board remand, which is herein incorporated by reference. Following the August 2017 Board remand, in August 2018, the Board denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran subsequently appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Memorandum Decision, the Court vacated and remanded the August 2018 Board decision. Thus, it returns to the Board for further consideration. The Board notes that, subsequent to the issuance of the May 2018 supplemental statement of the case, additional VA and private treatment records were associated with the record. However, as such are unrelated to the instant claim or contain duplicative information that was previously considered by the Agency of Original Jurisdiction (AOJ), there is no prejudice to the Veteran in the Board proceeding with the adjudication of his claim at this time. 38 C.F.R. § 20.1304(c). The Board finds that a remand is necessary to obtain an addendum opinion as to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. In this regard, in August 2018, the Board, based in part on VA medical opinions rendered in January 2012, July 2016, and April 2018, determined that: (1) the Veteran did not have a current diagnosis of PTSD; and (2) the Veteran’s currently diagnosed psychiatric disorders, to include major depressive disorder, unspecified personality disorder, and alcohol use disorder had not been shown to be at least as likely as not causally related to his active service, nor causally related to, or aggravated by, an service-connected disability. However, in the May 2020 Memorandum Decision, the Court found that the Board erred by failing to address a February 2010 eyewitness statement written by L.L. Specifically, the Court noted that, L.L. asserted that the Veteran had received injuries to his head and back while his patrol responded to a “major fire,” which caused him to suffer “some sort of mental blockage.” The Court further found that the Board erred by finding that the Veteran’s DD Form 214 did not “indicate any award of heroism,” and that “assertions of combat participation in any form, much less his alleged decorations for bravery in such actions, are unfounded.” Rather, the Court noted that the Veteran’s DD Form 214 reflected awards of the National Defense Service Medal, Arctic Service Medal, Navy Expeditionary Medal, Enlisted Submarine Qualification Insignia, Strategic Deterrent Patrol Pin with 1 Silver Star, Battle “E” Award, and Sea Service Ribbon with 2 Bronze Stars. Consequently, the Court determined that a remand was necessary for the Board’s failure to provide an adequate explanation for rejection of such favorable evidence. In this regard, the Board finds that there is no evidence of record indicating that VA attempted to verify the Veteran’s claimed in-service stressor related to L.L’s February 2020 eyewitness statement. Specifically, L.L. reported that, between 1988 and 1990, while aboard the USS James Monroe (SSBN-622) on patrol, he and the Veteran suffered a major fire; that the Veteran headed one of the fire teams; and that the Veteran received injuries to his head and back, which resulted in him not being the same. Here, L.L. further reported that he believed the Veteran suffered a mental blockage. Thus, the Board finds that the Veteran’s claimed in-service stressor related to the major fire has been described with enough specificity that the AOJ should attempt to corroborate such stressor through any appropriate sources, to include the Joint Services Records Research Center (JSRRC). A remand is therefore necessary in order for such to be accomplished. Additionally, as noted above, the Veteran was awarded the National Defense Service Medal, Arctic Service Medal, Navy Expeditionary Medal, Enlisted Submarine Qualification Insignia, Strategic Deterrent Patrol Pin with 1 silver star, Battle “E” Award, and Sea Service Ribbon with 2 Bronze Stars. Although it does not appear that the Veteran was awarded a Silver Star, it does appear that the Veteran was the recipient of the Strategic Deterrent Patrol Pin with 1 silver star. On remand, the AOJ should specifically consider each individual award, and ascertain whether any such awards were given to the Veteran due to either acts of heroism/bravery or participation in combat with the enemy. Such findings for each award should be placed in a memorandum in the file. Furthermore, the Board observes that, none of the aforementioned VA examiners considered the awards included on the Veteran’s DD Form 214. Significantly, in finding that the Veteran’s psychiatric disorder (diagnosed as depressive disorder, not otherwise specified, and alcohol dependence) was not related to his military service or secondary to any service-connected disabilities, the January 2012 VA examiner indicated that the Veteran claimed to have been awarded the Silver Star for heroism, but his DD Form 214 was negative for a Silver Star; and the July 2016 and April 2018 VA examiners simply quoted such statement in their opinions. Thus, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing the full and accurate factual premise of this case. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s claimed in-service stressor regarding the major fire while on patrol aboard the USS James Monroe (SSBN-622) between 1988 and 1990, through any appropriate source, to include JSRRC. In this regard, L.L. reported that the Veteran headed one of the fire teams; that the Veteran received injuries to his head and back, which resulted in him not being the same; and that he believed the Veteran suffered a mental blockage. If necessary, the AOJ should submit multiple requests to the JSRRC covering the relevant time period in 60-day increments. All requests and responses should be associated with the record. 2. The AOJ should ascertain, through all official sources, whether the Veteran’s awards, to include specifically the Strategic Deterrent Patrol Pin with 1 silver star, was awarded to the Veteran because he had combat with the enemy or because of acts of heroism or bravery. Such findings should be placed in a formal memorandum associated with the file and the Veteran and his representative should be given notice of such findings. 3. Forward the record to an appropriate medical professional so as to offer an opinion as to the etiology of the Veteran’s major depressive disorder, unspecified personality disorder, and alcohol use disorder. Following a review of the record, the examiner should provide opinions that respond to the following: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s major depressive disorder is related and/or represents a superimposed disability on his unspecified personality disorder? (B) If the answer to (A) is no, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s major depressive disorder had its onset in, or is otherwise related to, his military service? In offering such opinion, the examiner must consider the Veteran’s DD Form 214 which reflects awards of the National Defense Service Medal, Arctic Service Medal, Navy Expeditionary Medal, Enlisted Submarine Qualification Insignia, Strategic Deterrent Patrol Pin with 1 silver star, Battle “E” Award, and Sea Service Ribbon with 2 Bronze Stars. The examiner should specifically consider any and all development done by the AOJ in this regard as to whether such awards demonstrate combat with the enemy. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any psychiatric disorder or complaints thereof. (C) If the answer to (B) is no, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s major depressive disorder and/or alcohol use disorder is caused or aggravated by his service-connected physical disabilities (pes planus, bilateral ankle inversion sprain residuals, lumbosacral strain, and residuals of an injury to the right thumb)? For any aggravation found, the examiner should state, to the best of his/her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner must consider the competent lay statements submitted by the Veteran in February 1991, June 1995, January 1996, June 1996, March 2001, and May 2001 in regard to the relationship between his acquired psychiatric disorder and service-connected physical disabilities.   A rationale for any opinion offered should be provided. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.