Citation Nr: 21002402 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 11-20 236 DATE: January 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), to include as secondary to undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1982 to August 1985, from June 1991 to December 1991, and from November 2002 to November 2003. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated January 2009, issued by a Department of Veterans Affairs (VA) Regional Office. In June 2018, the Board denied the appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Remand (JMR), vacating and remanding the Board’s June 2018 decision denying this issue. The issue has now been returned to the Board for adjudication. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, to include as secondary to undiagnosed illness, is remanded. The Veteran underwent VA examinations in March 2011, September 2015, and December 2017 for his acquired psychiatric disabilities claim. At the Veteran’s March 2011 VA mental examination, the Veteran reported no direct combat but was deployed to a designated war-zone during his time in active duty. He also reported that many times working as a correctional officer was worse than his time in the military. The examiner determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, and because the Veteran did not report any significant emotional or behavioral symptoms, no Axis I diagnosis was given. The examiner noted that two prior PTSD screens at VA were negative. No nexus opinion was provided. In September 2013, the Board remanded the Veteran’s claim to provide him with another VA psychiatric examination which contained a nexus opinion. The Veteran was afforded an additional VA mental health examination in September 2015. The examiner reported that while a mental condition had been formally diagnosed (adjustment disorder with anxiety in October 2008), there was no indication in the records made available, the clinical interview in the current exam, and psychological test results, that symptoms of a mental disorder caused clinically significant impairment in occupational and social functioning, and that the Veteran did not have any additional psychological diagnoses. The examiner opined: I cannot resolve the issue without resort to mere speculation. Diagnosis, medical opinion, and rationale are based on DSM-5 and DSM-IV and other professional guidelines, the records made available to the undersigned, and the current exam. Based on the records made available (see above for details), the Veteran’s diagnosis of Adjustment Disorder with Depressed Mood is more likely than not caused by or a result of his physical health condition. Whether his physical health condition is caused by or a result of his military service is beyond the professional scope of the undersigned, hence the medical opinion offered above. Following this, in August 2017, the Board entered a decision, in relevant part, denying the claim of service connection for an acquired psychiatric disorder, to include PTSD. In October 2017, the Veteran entered a Motion for Reconsideration (Motion) of the Board denial of service connection for an acquired psychiatric disorder, to include PTSD. The Motion requested reconsideration on the basis of VA treatment records which reflected a March 2016 exam by Dr. J.M. which found a diagnosis of PTSD. Thereafter, in a December 2017 VA examination, the VA examiner concluded, The Veteran does not meet the DSM-5 diagnostic criteria for the diagnosis of PTSD based on diagnostic clinical interview from this examination. He does not report core symptoms of PTSD. He has had two C&P evaluations in the past and neither diagnosed PTSD. He does not report a stressor that would be reasonably associated with PTSD. He is not diagnosed with PTSD by his current VA treatment providers. He had a negative depression screen on October 12, 2017. He does not report sufficient symptoms that would be consistent with the diagnosis of anxiety, depression, sleep disturbance or other mood/anxiety disorder at this time. This opinion is based on review of the Veteran’s VBMS eFolder with military service treatment and personnel records, CPRS mental health treatment records, DSM-5 diagnostic criteria, subjective report of symptoms, objective test results from this examination, diagnostic clinical interview and training and experience of this examiner. Following this, in June 2018, the Board entered a Supplemental Decision to address the Motion, denying the Veteran’s claim. The Veteran then appealed to the Court. In its August 2020 JMR, the Court identified a duty to assist error because the Board relied on an inadequate examination in its denial. Specifically, the Court stated that the Board’s conclusion relied, at least in part, on a December 8, 2017 VA medical opinion. The December 8, 2017 VA medical opinion was inadequate for rating purposes due to an error regarding a factual predicate that the examiner relied upon, in part, to form his opinion. Specifically, the December 2017 VA examiner did not offer an opinion on a nexus between PTSD, or any other psychiatric disability. Moreover, the VA examiner determined that Appellant did not have a current disability of PTSD, or for that matter, current disabilities of anxiety, depression, sleep disturbance, or other mood/anxiety disorder. Thus, the failure to provide a nexus appears to have been at least partially founded on the examiner’s opinion that there were no diagnoses of PTSD in Appellant’s file. However, the parties note that the record contains a PTSD [sic] in a March 30, 2016 opinion by Dr. [J.W.M.], a VA doctor, which the December 2017 examiner did not account for [in] his opinion. More broadly, and as indicated supra, the Board itself noted that there were diagnoses of psychiatric disabilities in the record, for which the December 2017 examiner also did not account. The JMR directed: “On remand, the Board will ensure Appellant is provided with another VA examination and medical opinion to determine what psychiatric conditions Appellant currently has, and whether those are etiologically related to service, to include taking into consideration the multiple diagnoses of various psychiatric disabilities in the record.” Accordingly, the matter is REMANDED for the following action: 1. Request a medical opinion addressing the Veteran’s current acquired psychiatric disabilities. In-person examination is not required unless requested by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions: (a.) Please identify all acquired psychiatric disabilities present at any time since July 2008 that conform to the Diagnostic and Statistical Manual. The opinion should address the multiple diagnoses of various psychiatric disabilities in the record, including adjustment disorder with anxiety and PTSD. The opinion must specifically discuss the March 30, 2016 VA treatment record signed by Dr. J.W.M. (b.) For each acquired psychiatric disability identified, please provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the acquired psychiatric disability was due to service or had its onset in service. Explanations for all opinions must be provided. The examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding his symptoms. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.