Citation Nr: 21002337 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 11-27 572 DATE: January 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and generalized anxiety disorder (GAD), is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to January 1970, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeal (Board) on appeal from a November 2008 rating decisions issued by the Department of Veterans Affairs, Regional Office (RO), located in San Juan, Puerto Rico which, in part, denied service connection for PTSD, major depression and anxiety disorder. The Board notes that, in his October 2011substantive appeal, the Veteran requested a Board hearing. However, in subsequent December 2017 correspondence, the Veteran withdrew this hearing request. This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900(c) (2017). 38 U.S.C.§7107(a)(2) (2012). In March 2018, the Board remanded the issues on appeal for further development, and the case has since been returned to the Board. Specifically, the Board directed the AOJ to obtain an opinion on whether the Veteran met the DSM-IV criteria for PTSD. The Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, MDD, and GAD, is remanded. Although the Board regrets the 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. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he suffers from PTSD as a result of his military service, to include service in Vietnam and fear of enemy combatants attacking his position. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that while a VA examination is of record, an additional VA examination and opinion is needed in order to determine the nature and etiology of the Veteran’s claimed acquired psychiatric disability. The Board notes that the Veteran has DSM-IV diagnoses of major depressive disorder, recurrent, PTSD, and rule-out generalized anxiety disorder. Thus, the first element of service connection is met. Furthermore, while the Board notes that the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of an acquired psychiatric disability, an August 2008 response from the JSSRC (Joint Services Records Research Center) shows that the Veteran’s unit was stationed at Dong Ha Combat Base when it received rocket and/or mortar attacks in July and September 1969. As such, the Veteran was subjected to psychological stressors during his military service. Post-service VA treatment records indicate that the Veteran suffers from PTSD but do not provide an etiological opinion. Specifically, April 2016 VA treatment notes indicate the Veteran experienced flashbacks at a reunion with other Vietnam Veterans. VA treatment notes from 2017 indicate the Veteran has nightmares and avoidances behaviors. The Veteran reported medication helped him avoid intrusive and depressing memories about his time in Vietnam and “horrible events that happened.” The Veteran’s September 2019 VA treatment notes indicate the Veteran experiences nightmares, intrusive thoughts, and flashbacks. The notes indicate that the Veteran is hypervigilant and guarded and experiences audio hallucinations. The treatment notes also indicate the Veteran avoids military installations and crowds as they cause intrusive thoughts and flashbacks. The Veteran underwent a VA mental health examination in November 2019. The examiner indicated the Veteran did not meet the DSM 5 criteria for PTSD but did not consider the DSM-IV criteria as directed by the Board. Further, while the VA examiner focused on the Veteran not currently experiencing all criteria for PTSD, the examiner did not discuss the Veteran’s treatment notes showing avoidance or negative alterations in cognition or mood. Further, the examiner was directed to indicate whether the Veteran currently has, or at any time pertinent to his August 2007 claim experienced PTSD, even if currently resolved. The examiner provided no opinion on whether the Veteran met the DSM-IV criteria for PTSD. Thus, the examination is inadequate. The matters are REMANDED for the following action: The Veteran should be afforded a VA examination conducted by a psychologist or psychiatrist, other than the November 2019 examiner, in order to determine the current nature and etiology of his claimed acquired psychiatric disability. The record should be made available to and be reviewed by the examiner. Following a review of the record, the reviewing examiner is asked to furnish an opinion with respect to the following questions: (a.) Identify all of the Veteran’s acquired psychiatric disabilities that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM- -IV) criteria. (In this regard, the DSM-IV is being used in clinical settings, for cases certified to the Board prior to August 4, 2014 (the Veteran’s case was originally certified in October 2012), therefore, the diagnosis of PTSD must be in accordance with the DSM-IV. (b.) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of the Veteran’s claimed in-service stressors. If the examiner does not find that the Veteran meets the DSM-5’s criteria for PTSD, he or she should explain why in detail and reconcile such findings with the VA treatment records. (c.) For each currently diagnosed acquired psychiatric disability other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such disability is related to the Veteran’s military service. In offering any opinion, the examiner should consider the full record, to include the Veteran’s lay statements regarding the onset of his acquired psychiatric disability and continuity of symptomatology, as well as the medical records. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.