Citation Nr: 21003129 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-19 280 DATE: January 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and intermittent explosive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2003 to May 2006 and May 2007 to June 2008. He is a veteran of the Gulf War Era and served in Kuwait. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not report for a Board hearing that was scheduled to be conducted in August 2017. Because the Veteran neither submitted good cause for failure to appear nor requested to reschedule the hearing, the request for a hearing was deemed withdrawn. 38C.F.R. §20.704(d). Most recently, in May 2020, the Board remanded this matter for further evidentiary development. Pursuant to the May 2020 Board remand, VA issued a July 2020 Formal Finding of Lack of Information Required to Verify Stressors in connection with this claim. In August 2020, the RO obtained a VA addendum opinion. The claims file contains two opinions provided by the August 2020 VA examiner. In the first opinion, the examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned, The [V]eteran has been evaluated by [Mental Health] C&P examiners on three occasions, 2012, 2014, and 2019, none of which include a diagnosis of PTSD. The [V]eteran has been diagnosed with PTSD per VA treatment notes[;] however[,] his symptoms have not been consistent with those evaluated by C&P examiners. A treatment diagnosis does not supersede a C&P examination diagnosis without evidence that the C&P diagnosis was made in error or that information was not available to the examiner. If the stressor of hearing the death of a fellow soldier on the radio were verified, it would not meet the VA threshold for fear of hostile military as the [V]eteran would have been witnessing (via radio) the trauma of another[;] however[,] the [V]eteran was reportedly not on the mission reported as a stressor and thus his experience of hearing the was not related to his own fear of harm. Upon review, the Board finds it necessary to remand the matter as there remains insufficient evidence to decide the claim. Initially, the Board notes that the August 2020 VA examiner’s opinion is supported by the fact that the Veteran had been evaluated by VA examiners in 2012, 2014, and 2019 and that neither examiner provided a diagnosis of PTSD. However, in its previous remands, the Board determined the VA examiners’ opinions finding the Veteran did not meet the diagnostic criteria for a PTSD diagnosis were inadequate. Additionally, pursuant to the May 2020 remand, regardless of whether the Veteran’s claimed stressor had been verified, the VA examiner was asked to offer an opinion as to whether it is at least as likely as not that the Veteran has PTSD that is based on fear of hostile military or terrorist activity. To reiterate, the Veteran’s service records confirm that he served in a designated imminent danger pay area in Kuwait from May 2007 to May 2008. The Veteran has described in a December 2013 VA Mental Health Note, that he heard on the radio about the death of a soldier. He described later seeing blood and body matter in the vehicle after its return to base. He also reported seeing the deceased sergeant’s body. In addition, the Veteran reported this stressor in a January 2014 Statement in Support of Claim. He stated that he and others heard over the radio that an improvised explosive device (IED) had detonated, and a sergeant had been injured and Medevac was called. The Veteran stated that he heard the sergeant dying over the radio. The August 2020 examiner’s opinion does not appear to adequately answer the question asked by the Board in the May 2020 remand in that the opinion was to be provided regardless of whether the Veteran’s claimed stressor was verified. Furthermore, the examiner did not consider the Veteran’s reports of later seeing blood and body matter in the vehicle after its return to base and seeing the deceased sergeant’s body. Lastly, the May 2020 Board remand directed the examiner to offer an opinion as to whether it is at least as likely as not that any other psychiatric/mental disorder is causally or etiologically related to the Veteran’s active service. As noted in the remand, the claims file contains a diagnosis of intermittent explosive disorder. However, the examiner did not provide an etiology opinion regarding such diagnosis. Accordingly, the Board finds remand is required to address the above deficiencies. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, to include PTSD and intermittent explosive disorder. The claims folder, including a copy of this remand, must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiners should be performed. a. The examiner must be advised of all verified stressors. The examiner must determine whether the Veteran has a diagnosis of PTSD under the DSM-5. If a diagnosis of PTSD is deemed not appropriate, the examiner must explain why the diagnostic criteria for PTSD under the DSM-5 have not been met. The examiner should consider and specifically address the VA treatment records noting a diagnosis of PTSD. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. i. If the Veteran does have a diagnosis of PTSD, is it at least as likely as not (50 percent or greater probability) that the diagnosed PTSD had its onset during, or is otherwise related to, the Veteran’s active duty service or any verified stressor? (The examiner is advised that only verified stressors may be considered.) ii. The examiner should state whether a diagnosis of PTSD is related to the Veteran’s fear of hostile military or terrorist activity of the type contemplated by 38 C.F.R. § 3.304(f)(3). iii. The examiner must determine whether any psychiatric disorder, other than PTSD, to include intermittent explosive disorder, at least as likely as not had onset in or is/are otherwise etiologically related to the Veteran’s active military service. The examiner must consider all lay statements submitted by the Veteran regarding his disorder. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.