Citation Nr: 21001279 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 20-01 632 DATE: January 7, 2021 REMANDED Entitlement to service connection for a psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1980 to January 1981 and in the U.S. Navy from March 1984 to February 1989, including sea service. The Board thanks the Veteran for his service to our country. Entitlement to service connection for a psychiatric disorder is remanded. A remand is warranted as an addendum opinion as to the nature and etiology of the Veteran’s psychiatric disorder is necessary. In a November 2019 VA examination reports, the examiner noted that the Veteran’s claims file was searched for but not located or reviewed and that all pertinent, provided records were reviewed. Additionally, the examiner stated that the Veteran’s records reflected no experience of injury or combat-related stressors but did not address the Veteran’s lay statements of learning that they were traveling through mined waters when the tanker they were escorting hit a mine, being called to general quarters for 12 hours a day, firing on oil rigs, and witnessing a mail helicopter crashing on the deck of a sister ship. Moreover, while the examiner acknowledges the in-service degradation of performance and the Veteran’s report of taking No-Doze and later cocaine to stay awake, no explanation was provided as to whether it is a manifestation of the Veteran’s psychiatric disorder or the Veteran’s reports of sleep disturbances and nightmares since his time in the Persian Gulf. Finally, while the VA examiner concluded that the Veteran does not have posttraumatic stress disorder (PTSD), the Board notes diagnoses of PTSD by multiple VA mental health treatment providers. A remand is additionally warranted as further evidentiary development is necessary. As described above, the Veteran relayed in-service experiences including escorting ships in the Persian Gulf, witnessing a helicopter crash on the deck of a sister ship, taking small fire from speed boats, and firing upon oil rigs. He also submitted information about Operation Nimble Archer and events in the Persian Gulf in 1987 involving U.S. forces, the source of which is unknown. However, the record does not reflect any development with respect to these events. Finally, the Board observes that it is unable to review potentially relevant records. Scanned records referenced in a March 2015 private examination are noted in December 3, 2014; January 26, 2015; February 2, 2015; February 9, 2015; and March 6, 2015 nonVA consult notes; however, the Board does not have access to these records and is unable to review them. Accordingly, these records should associated with the record. The Board makes no credibility findings at this time. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disorder on appeal. 2. Please print and scan into VBMS private records identified in December 3, 2014; January 26, 2015; February 2, 2015; February 9, 2015; and March 6, 2015 nonVA consult notes. 3. Please request and document responses regarding verification or corroboration of the Veteran’s claimed in service events from the JSRRC: whether the USS Kidd escorted tankers from July 21-24, 1987; the proximity of the USS Kidd to the La Salle (AGF-3) on July 30, 1987; whether the USS Kidd fired warning shots on August 24, 1987 and was approached by an Iranian warship; the proximity of the USS Kidd to the La Salle on October 4, 1987; and the participation of the USS Kidd in firing on oil platforms on October 19, 1987. 4. After the development in paragraphs 1-3 is complete, please refer the claim to a clinician for an opinion as to the nature and etiology of an acquired psychiatric disorder. The Veteran’s claims-file must be made available to and reviewed by the clinician. The clinician is requested to opine as to the following: (a.) Please identify by diagnosis all acquired psychiatric disorders current during the period on appeal, including PTSD. Please note that the record reflects the Veteran carries a DSM 5 diagnosis of PTSD from a private psychologist and VA physician(s) (see September 2018 VA discharge summary). The examiner must therefore find as fact that the Veteran has carried a diagnosis of PTSD for at least part of this appeal period. (b.) For each disorder identified, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) related to service, including, for PTSD, any confirmed stressors or as due to fear of hostile military or terrorist activity. (c.) The clinician is specifically requested to explain whether the Veteran’s lay statements as to his symptomatology (including nightmares and sleep disturbances starting in 1987 or 1988 after returning from the Persian Gulf and anger issues starting in 1995 or 1996) and lay statements (from two childhood friends and his spouse, referenced below, associated with the record on July 21, 2015), align with how the acquired psychiatric disorder is known to develop. For the purposes of rendering an opinion as to non-PTSD diagnoses, the clinician is requested to take as fact the Veteran’s lay statements of in-service events: his ship was deployed to replace the USS Stark, which had been struck by missiles; discovering the Gulf was full of mines when a tanker his ship was escorting hit a mine; he was called to general quarters because of small boats approaching and general quarters for 12 hours a day were a constant thing; SEAL teams boarded a ship laying mines; he witnessed a helicopter crashing on the deck of a sister ship; his ship blew up oil rigs. The clinician is advised that there is no legal requirement for major depressive disorder to be related to a combat related stressor. The clinician is requested to consider and explain: • The Veteran’s duties and responsibilities included serving as an on-scene leader for the helo crash and salvage detail and the at-sea fire party, as well as damage control operator and sounding and security watch. • The Veteran’s performance evaluation report for the period from April 1, 1987 to March 31, 1988 (see Military Personnel Record received July 14, 2015 pages 66-67 of 103); • The Veteran’s performance evaluation report from April 1, 1988 to February 3, 1989 in which it was noted that his performance had “deteriorated significantly,” that he required “almost constant supervision,” that he could not be relied upon to work a full workday, that his shipmates had to rework some of his assignments because he did not do a good job, and that he lost the respect of his peers and subordinates due to his performance and a drug-related incident (see Military Personnel Record received July 14, 2015 pages 94-96 of 103); • A February 3, 1989 memorandum by a physician (not a clinical psychologist) concluding that the Veteran was not dependent on alcohol/drugs, used substance recreationally and because it was available, and that he could control his use (see Military Personnel Record received July 14, 2015 pages 96-97 of 103); • A March 25, 2015 private examination references a December 3, 2014 treatment record noting that the Veteran reported blowing up oil rigs, that he found it difficult to sleep due to dreams of events in the Persian Gulf, and that he thought his inability to sleep was connected to his irritability; it also references a February 2, 2015 treatment record noting that he reported that when he returned from the Persian Gulf he was having nightmares and could not sleep and turned to drug use. • In the November 2019 VA examination report, the Veteran reported taking No-Doze to stay awake, which progressed to use of cocaine. • In an August 23, 2014 mental health H&P note, the Veteran reported that he had ongoing anger issues for 18 to 19 years. • In a July 2015 lay statement, L.D.W., who had known the Veteran since childhood, relayed changes in his personality after his service in the Navy: he was always mad, always had a defensive attitude like someone was after him or going to get him, and abruptly quit a good job and moved. • In a July 2015 lay statement, A.H., who had known the Veteran since the first grade, relayed changes in his personality when he returned from his Navy service: he had no interest in going anywhere, was always jumpy, and seemed like a different person. • In a July 2015 lay statement, the Veteran’s spouse, who only knew him after service, relayed that at night he would have dreams and would fight or say things like he was terrified, and that when she inquired as to the dream he would reply that he was dreaming about the Navy. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.