Citation Nr: 21002979 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-03 602 DATE: January 19, 2021 ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1960 to August 1963, and the Army National Guard from January 1972 to November 1997. These matters come before the Board of Veterans’ Appeals (Board), on appeal from June 2014 and June 2017 ratings decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. By way of background, the Veteran’s claim for entitlement to service connection for post-traumatic stress disorder was denied in February 2003. The Veteran did not immediately appeal that denial, which therefore became final. The Veteran filed a claim for entitlement to service connection for unspecified depressive disorder, which was denied in June 2014. He filed a Notice of Disagreement (NOD) that same month. The Veteran was issued a statement of the case (SOC), and he filed a Form 9 in January 2015, appealing that claim to the Board. In the Veteran’s Form 9, he requested a Board Hearing. The Veteran then filed a claim to reopen the previously denied claim, and in a June 2017 rating decision, the RO declined to reopen the Veteran’s PTSD claim. The Veteran appealed that decision, and the Veteran’s claim was eventually certified to the Board, along with the claim for entitlement to service connection for unspecified depressive disorder. The Veteran then testified before the undersigned Veteran’s Law Judge at a January 2018 Board video conference hearing. A transcript of that hearing has been associated with the claims file. Following the Veteran’s testimony, the Veteran’s claims were placed on the Board’s docket, and in a Decision from June 2018, the Veteran’s claim of entitlement to service connection for unspecified depressive disorder was recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema, as shown on the title page. See further Clemons v. Shinseki, 23 Vet. App. 1 (2009) (When a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In that same decision, the Board found that new and material evidence had been received to reopen the claim for entitlement to service connection for PTSD. Following that, both of the Veteran’s claims were remanded for additional development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). The claims have since returned to the Board. The Board finds however that additional evidentiary development is required before the claims on appeal are adjudicated. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema is remanded. The Veteran has claimed that he has an acquired psychiatric disorder, which is due to his active duty service. He has also claimed that his psychiatric disorder may be proximately due to and/or aggravated by his service-connected bilateral hearing loss, tinnitus, and/or his eczema. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted above, the Veteran’s claim was previously remanded by the Board in June 2018. As it relates to this claim, the RO was to schedule the Veteran for a VA examination so that his diagnoses could be confirmed, and so an etiological opinion could be rendered. That examination occurred in September 2020. The Veteran was seen in person, and the Veteran’s claims file was reviewed. The examiner listed lay statements as taken by the Veteran, to include his claimed in-service occurences. After confirming the Veteran’s diagnosis of an acquired psychiatric disorder, to include unspecified depressive disorder, they checked a box indicating that the Veteran’s depressive disorder was less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. The following rationale was provided: Veteran has a diagnosis for unspecified depressive disorder. The Veteran reports and STR documented in previous mental health disorders disability benefits questionnaire dated [May 29, 2014] by [K.Y.] that Veteran reported onset of depression following his first divorce, which preceded his problems with bilateral sensorineural hearing loss, tinnitus and eczema, right lower leg. With that, his depression diagnosis is less likely than not due to or the result of bilateral sensorineural hearing loss, tinnitus and eczema, right lower leg. As such, a negative etiological opinion was rendered. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the September 2020 VA examination is inadequate for determining the Veteran’s claim for service connection. To begin, an opinion as it relates to direct service connection was not offered. As specified in the Board’s Remand directives from June 2018, an opinion must be obtained as to whether the Veteran’s acquired psychiatric disorder is at least as likely as not related to his active duty service. The Veteran has provided lay statements, as outlined in the September 2020 statement, however those statements were not mentioned within the rationale provided. Second, while the opinion denied that the Veteran’s depression was proximately due to the service-connected disabilities, an opinion on aggravation was not mentioned. This is required under 38 C.F.R. § 3.310. Third, the rationale pointed to a May 2014 opinion that stated the onset of the Veteran’s symptoms followed his first divorce. That was addressed in the Board’s June 2018 decision, as a treatment record from December 2012 stated that the Veteran’s then ex-wife took issue with the Veteran sleeping with his rifle, and “has ever since his return from Vietnam.” These facts were also identified within the September 2020 VA examination in the section addressing the evidence reviewed, however the opinion still relied on the inaccurate factual premise that the Veteran’s symptoms followed his divorce. An opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). As such, the Board finds that the September 2020 VA examination is inadequate for determining the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be given another VA examination, so that the required etiological opinions may be provided. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). The Veteran has claimed that he has a diagnosis of PTSD that is due to his active duty service. To establish service connection for PTSD, the evidence must satisfy three basic elements: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). To begin, it is unclear if the Veteran has a current diagnosis of PTSD. The Board notes that there is some past evidence of a diagnosis. A medical record from Dr. C.E., dated December 2000 stated that the Veteran “Does meet criteria for PTSD … he described several criterion ‘A’ traumas, including seeing the bodies of women and children who were killed by [Vietcong] for aiding American soldiers, and frequent combat experiences.” As the Board will note later, these listed stressors are not those identified by the Veteran, nor have they been corroborated. 38 C.F.R. § 3.304(f). A Mental health psychiatric evaluation note from January 2001 indicates that the Veteran “presents with PTSD/depressive [symptoms].” There is no indication that this evaluation was based on corroborated stressors, and there is no evidence that the psychiatric evaluation was based on the appropriate Diagnostic and Statistical Manual of Mental Disorders. The Veteran’s VAMC records, to include group therapy sessions then included a working diagnosis of post-traumatic stress disorder, which had not been verified. This was confirmed as early as December 2001 in a mental health psychiatric evaluation and stayed with the Veteran’s VAMC diagnostic history through regular consultations and group therapy sessions. As a more recent example, the Board notes that his claims file contains a psychology progress note from December 2017, which notes a “diagnostic impression [of] depression, borderline trains, PTSD.” The Board also notes that the Veteran’s claims file includes a VA mental health evaluation from May 2014. The Veteran was seen in person, and his claims file was reviewed. The examiner is noted to have used the correct DSM-5. When asked to list any potential mental health disorders, the examiner only identified unspecified depressive disorder. They also indicated that no other mental health disorder could be diagnosed. Due to, in part, the unclear diagnostic history, the Board in June 2018 remanded the Veteran’s claim for a subsequent VA examination. That VA examination occurred in September 2020. The Veteran was seen in person, and it is clear from the report provided that the Veteran’s claims file was reviewed. While the examiner did confirm that the Veteran had a diagnosis of unspecified depressive disorder, the examiner specifically denied that the Veteran had a current diagnosis of PTSD. They also wrote that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-5. When discussing potential stressors, the examiner listed the following four stressors, as reported by the Veteran: (1) combat related trauma. Veteran reported that he didn’t want to talk about what happened because ‘it bothers me.’ (2) “machine gun blew up and I was the assistant gunner. It semi-knocked us out. It never got documented.” (3) “I got hurt in Japan. My right foot. I went down in the big hole at nighttime. No one could see me or hear me at first. I twisted my ankle. I got pictures.” (4) “drowning in the ocean a couple times. I hit the bottom of the ocean with my shoulder and I pushed off the sand.” For each of the listed stressors, the examiner indicated that the criteria for a diagnosis of PTSD was not met. The examiner then discussed each of these stressors, and stated that they could not be corroborated, and the ones that could meet the criteria, such as stressor (1), was not discussed in any way. As such, the examiner noted that “a PTSD diagnosis is consistently documented in his [records] but could not be objectively confirmed for the current exam.” In consideration of the above, it is unclear if the Veteran has a current diagnosis of PTSD under 38 C.F.R. § 3.304(f). Affording the Veteran the benefit of the doubt, the Veteran’s claim should be remanded one more time a VA mental health evaluation with a VA psychiatrist to determine whether or not the Veteran has a current diagnosis of PTSD, pursuant to 38 C.F.R. § 3.304(f). As the Veteran’s claim is being remanded to determine his current diagnosis, the Board finds it appropriate for the RO to take additional efforts to corroborate the Veteran’s claimed stressors. To be sure, these listed stressors as claimed by the Veteran, have not been consistent. The Veteran testified at the January 2018 Board hearing that he served “all over in the Pacific, in Hawaii, submarine training, Okinawa, Japan, Taiwan, Hong Kong for R&R, Philippines for jungle training.” The Veteran then stated that he “went to Thailand, swam the Mekong at night and brought the last Americans out of Laos. Went across Cambodia into Da Nang.” When asked if these activities would be reflected in his personnel records, the Veteran answered the he “didn’t think so,” as there was only “one clerk for 144 people.” The Board notes that there is inconsistent evidence regarding the Veteran’s claimed combat experience. The Veteran’s DD-214 notes the Veteran served on active duty in the Marine Corps from November 1960 to August 1963, with 1 year, 1 month and 28 days of foreign and/or sea service. The only medal or citation was for the Good Conduct Medal. The Board further notes that the Veteran’s service personnel records do not list any deployments to Southeast Asia. However, a Record of Service notes the Veteran was assigned to Company D of the 1st Battalion, 5th Marine Regiment Fleet Marine Force Pacific from May through July 1962. The Board further notes the Veteran was stationed with Company M of the 3rd Battalion of the 9th Marine Regiment, 3rd Marine Division Fleet Marine Force from August 1962 through August 1963. An NGB Form 22 showing service in the Minnesota ARNG from August 1980 to January 1982 shows no decorations other than an expert badge for the M16 rifle. An NGB Form 22 showing service in the Minnesota ARNG from November 1986 to April 1995 indicates the Veteran was in receipt of, among others, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Purple Heart. A Personnel Qualification Record indicates the Veteran received the Vietnam Campaign Medal. A Transmittal of and/or Entitlement to Awards notes the Veteran is entitled to an Armed Forces Expeditionary Medal. “Vietnam” was handwritten next to this award. No other awards, including the Vietnam Service Medal, the Vietnam Campaign Medal, or the Purple Heart, were selected. The Board is also reminded that this claim was previously remanded in June 2018. In the remand directives, it was outlined that the RO was to make additional efforts to attempt to corroborate the Veteran’s three claimed stressors. These stressors were (1) being deployed in Southeast Asia (generally), (2) being on a ship, the USS Magoffin, during a typhoon in December 1962, and (3) being carried out to sea by a rip tide off the coast of Camp Pendleton, California, in the Fall of 1961. The Board acknowledges that two efforts were made by the RO to corroborate these stressors, first in January 2020 and then in May 2020. While logbooks for the USS Magoffin have been associated with the claims file, no finding was made as to corroborating the Veteran’s claimed stressor. Furthermore, the Veteran’s service in Southeast Asia, to include in Vietnam and being awarded the Purple Heart, as well as being carried out to sea by a rip tide while stationed at Camp Pendleton have not been corroborated, and no further information as to those claimed stressors has been gathered. On remand, as the Veteran’s claim is being remanded to confirm a current diagnosis of PTSD, the Board finds that an additional effort should be made to assist the Veteran in corroborating his claimed stressors. Importantly however, the Veteran should know that it is his responsibility to relay a consistent list of stressors for his claim of entitlement to service connection for PTSD. The Board notes that the stressors requested by the RO in January 2020 and May 2020, as directed by the Veteran, are different than those claimed by the Veteran during his September 2020 VA examination, which are also different than the stressor originally reported to Dr. C.E. in December 2000. The Board also acknowledges the Appellate Brief, filed by the Veteran’s Representative in December 2020, which states that when it comes to detailing certain stressors, the Veteran “finds it very difficult to retell the events that he experienced [and that] this should not be the reason for denying his service connection” claim. Having acknowledged that however, the Veteran should understand that VA’s duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran’s claim. This includes providing a consistent and detailed account of what his claimed stressor(s) are, and how he believes they form the basis for his claimed PTSD. If the Veteran does not cooperate in the development of his claim, it may result in adverse action. See 38 C.F.R. § 3.158 (“where evidence requested... is not furnished within 1 year after the date of request, the claim will be considered abandoned.”); see also Wood at 193 (1991). In summary, and in consideration of the above, the RO should reach out to the Veteran to confirm his list of claimed stressors, and then the RO should take appropriate efforts to corroborate each of them. Only after that development has been completed, should the Veteran be scheduled for a VA mental health evaluation with a VA psychiatrist, who is asked to confirm whether or not the Veteran has a current diagnosis of PTSD under 38 C.F.R. § 3.304(f), based on the stressors that can be corroborated. Following that, an etiological opinion should be rendered. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Contact the Veteran and ask that he provide a consistent list of detailed stressors that he believes have caused his claimed diagnosis of PTSD. The Veteran should be informed that credible supporting evidence that the claimed in-service stressor occurred is necessary for his claim, and that the failure to cooperate in the development of this claim may result in an adverse determination. 38 C.F.R. § 3.304(f). Any response received by the Veteran must be documented in the claims file. 3. Based on the list provided by the Veteran, the RO must make a formal finding as to whether the Veteran’s claimed in-service events/injuries can be confirmed. If necessary, the RO should contact the Joint Services Records Research Center (JSRRC), and any other appropriate source and request that they determine if any of the Veteran’s claimed in-service events can be confirmed. As a reminder, the deck logs of the USS Magoffin have already been associated with the claims file. Any response received as to corroboration must be documented in the claims file. 4. After, and only after, completion of steps one through three above, schedule the Veteran for a psychiatric examination (or telehealth interview, review of the record, etc., if an in-person examination(s) is not feasible) to determine the nature and etiology of any PTSD and/or other acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss and/or tinnitus and/or eczema. A copy of this remand must be made available to the examiner for review in conjunction with this examination. Following a review of the Veteran’s claims file, the examiner is asked to opine as to the following: As it relates to the Veteran’s PTSD claim: (a.) The examiner is asked to confirm whether or not the Veteran has a current diagnosis of PTSD based on the appropriate DSM. The examiner must explain how the diagnostic criteria are met and opine whether any confirmed PTSD diagnosis is at least as likely as not related to a verified in-service stressor. The examiner is reminded that the RO is to make a formal finding as to whether or not any of the Veteran’s claimed in-service stressors can be verified, prior to this opinion being rendered. As it relates to the Veteran’s acquired psychiatric disorder claim: (b.) If any other acquired psychiatric disorders are diagnosed, to include unspecified depressive disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. (c.) If not, the examiner must opine whether each diagnosed disorder is at least as likely as not (1) proximately due to service-connected bilateral hearing loss, tinnitus, and/or eczema, or (2) aggravated beyond its natural progression by service-connected bilateral hearing loss, tinnitus, and/or eczema. The examiner is reminded than an opinion on possible aggravation is required. The examiner must address the lay statements from the Veteran regarding his claimed disabilities. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 5. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case (SSOC) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.