Citation Nr: 21003195 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-37 087 DATE: January 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety and depression (claimed as PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 2003 to January 2004. The case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a RAMP opt-in election form that was received on October 4, 2018, the Veteran indicated that he was opting-in to the RAMP via the Supplemental Claim lane. However, in September 2020, the Veteran’s representative submitted a letter indicating that the Veteran wished to proceed under the legacy system and not under the modernized system, requesting that the Board disregard the previous RAMP opt-in election. Thus, the Board will adjudicate this claim under the legacy appeals system. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety and depression (claimed as PTSD), is remanded The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include generalized anxiety and depression (claimed as PTSD). The Board has expanded the issue to include an acquired psychiatric disability in conformance with the Federal Circuit's decision in Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). The issue has been recharacterized accordingly herein. Specific to claims of PTSD, service connection requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f). As the instant case was certified to the Board after August 4, 2014, a diagnosis of PTSD must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.125. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the Veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the Veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f). If VA determines that the Veteran did not engage in combat with the enemy, that he did engage in combat but that the alleged stressor is not combat related, or that the stressor is not related to the fear of hostile military or terroristic activity, then a Veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998). VA regulations require that the Veteran must have “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.” VAOPGCPREC 12-99 (Oct. 18, 1999). Furthermore, service in a general “combat area” or “combat zone” or reference to participation in an operation or campaign is not, alone, sufficient. Here, the Veteran is shown to have served in a combat zone, but service records do not show that he engaged in combat and his DD-214 does not show any combat awards. See DD Form 214. The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD, is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The Veteran was afforded a VA examination in April 2015. The examiner noted that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 and that the Veteran did not have a mental disorder that conformed with DSM-5 criteria. During the examination, the Veteran was diagnosed with malingering behavior. The examiner noted that the Veteran was intentionally presenting himself in an extremely negative light and as a result, the functional impact of claimed psychiatric symptoms was difficult to assess without mere speculation. The examiner noted that the Veteran’s initial VA evaluation note in August 2010 noted no combat experience and that the Veteran had no adjustment issues, irritability, difficulty sleeping, or anger control issues at the time. The Veteran reported that he was exposed to remote blast exposure about 200 meters away with no residual effect felt or sustained. A review of the Veteran’s VA treatment records in July 2010 reveals a negative PTSD screening. See July 2010 VA treatment record. The examiner noted the Veteran’s reported stressor as non-direct combat exposure to the aftermath of various IED incidents and learning of the deaths of soldiers in his unit, but no direct exposure to these trauma events. The Veteran claimed to have feared for his life after hearing about IED and mortar attacks. The Veteran reported insomnia, decreased attention/concentration, memory difficulties, anorgasmia, anger/irritability, degreased frustration tolerance, anhedonia, apathy, mild hypervigilance, and depressed mood. The examiner added that the Veteran’s symptom constellation is more akin to that seen in patients with a depressive disorder, not a trauma-based anxiety condition such as PTSD. In July 2014, the Veteran submitted a statement in support of claim for PTSD and described two stressors during his deployment. He added that he was subject to constant mortar attacks. He described his Military Occupational Specialty (MOS) was petroleum supply specialist and this added to his stress because of his close proximity to fuel. He also added that four soldiers from the infantry unit that his unit supported were killed in an IED attack. The Veteran described his second stressor as an being alerted that an IED went off when his unit was supporting the infantry unit at an Iraqi Army Base. He added that he later found that explosions had occurred at a nearby yard and had set the yard on fire. He also added that the incident caused their unit to be put on high alert and that he feared for his life. The Board observes that Veteran’s reported stressors appear to be related to fear of hostile military or terroristic activity. 38 C.F.R. § 3.304(f)(3). In April 2017, the Veteran submitted a private mental residual functional capacity assessment from Dr. E.H. A diagnosis of PTSD and Major Depression was noted. He also noted “Axis IV: 5-Combat Iraq War.” The examiner noted that the Veteran experienced nightmares, flashbacks, sleep issues, startles easily, hypervigilance, intrusive thoughts, trouble concentrating and also noted medications that the Veteran was taking such as Trazadone, Klonopin and Wellbutrin. However, considering that the examiner noted that the Veteran served in combat, the opinion is inconsistent with the evidence of record and therefore inadequate. The Veteran submitted a new September 2020 private examination from Dr. J.P. Dr. J.P. diagnosed the Veteran with unspecified depressive disorder. Dr. J.P. referenced the April 2017 mental residual functioning capacity assessment conducted by Dr. E.H. that the Veteran also has been diagnosed with PTSD. Dr. J.P. added that the Veteran reported for treatment in August 2010, the same year he was discharged, although no psychological symptoms were reported at the time, that it is common for individuals suffering from significant difficulties to not initially seek out treatment since they are not fully aware of their defects. The examiner provided a positive nexus opinion and provided a rationale that the nexus was based on credible statements showing a documented onset of mental health symptoms as a direct result of incidents from the Veteran’s service given the Veteran’s statements and medical records indicating the severity and chronicity of his psychological conditions and because such symptoms did not exist prior to service. However, the Board observes that Dr. J.P.’s positive opinion is based on the fact that the Veteran reported to his local VA the same year as being discharged from active duty, although he did not report any psychological symptoms and Dr. E.H.’s mental residual functional capacity test conducted in April 2017 where he diagnosed the Veteran with PTSD and major depression, that the Board has found to be inadequate above. Furthermore, the examiner failed to note the negative PTSD screening from July 2010 noted in the VA treatment records. Thus, Dr. J.P.’s September 2020 VA examination is also inadequate as it is inconsistent with the evidence of record. The Veteran’s representative submitted an argument in September 2020 claiming that the April 2015 VA examination was inadequate as a nexus opinion was not provided without the examiner resorting to speculation and that he did not provide an adequate rationale because the Veteran’s symptoms were noted in other portions of the examination. However, the Board finds that the VA examiner simply noted symptoms as they were being reported by the Veteran during the examination. However, as the April 2015 VA examiner stated that the Veteran’s symptom constellation is more akin to that seen in patients with a depressive disorder, not a trauma-based anxiety condition such as PTSD, a new VA examination is needed to address the nature and etiology of any depressive disorder, including any other acquired psychiatric conditions. Accordingly, the matter is REMANDED for the following action: 1. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. 2. If the Veteran is diagnosed with a personality disorder and PTSD - The examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. 3. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. (Continued on the next page)   5. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefits sought in connection with the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.