Citation Nr: 21061842 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-20 277A DATE: October 5, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include schizophrenia, depression and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served in active-duty service with the Army from September 1976 to May 1977. This matter is on appeal from a November 2011 rating decision. The Veteran was afforded a December 2017 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in March 2018 and June 2019 for additional development. The Board in December 2019 denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in December 2020, issued a decision to vacate and remand the issue back to the Board for re-adjudication. The Court found that the December 2019 Board decision erred in relying on the July 2019 VA examination opinion because the examiner's opinion was inadequate and did not comply with the directives as requested by the June 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). The Court noted that the July 2019 VA opinion did not identify the Veteran's claimed stressors as described in August 2016 and January 2017 or address why these assertions to include December 2017 hearing testimony were considered. The Court also noted that the July 2019 VA opinion was unclear as to why the examiner opined that there was no "strong support" for the occurrence of military sexual trauma (MST); the Court indicated that the use of the term "strong support" was an incorrect standard for service connection. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("This 'unique' standard of proof is lower than any other in contemporary American jurisprudence and reflects 'the high esteem in which our nation holds those who have served in the Armed Services.'"); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2010) ("...in the veterans benefits system the benefit of the doubt as to any issue material to resolution of the claim goes to the veteran if the evidence is in equipoise..."). Finally, the Court found the July 2019 opinion failed to explain why an opinion could not be rendered without resorting to speculation and did not discuss any potential reasons why it would be mere speculation to opine to the etiology of the Veteran's trauma and stressor related disorders and if this was because of the examiner's limitations or limitations of the medical community. As such, the Board finds the July 2019 opinion inadequate, and therefore remand warranted to obtain a new medical opinion on the etiology of the Veteran's claimed acquired psychiatric disorder in compliance with the June 2019 Board Remand directives. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. After all outstanding records have been associated with the claims file, obtain a medical opinion on the Veteran's acquired psychiatric disorder. The record and a copy of this remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. The VA examiner should opine as to the following: (a.) Identify all diagnosed psychiatric disorders to include PTSD. All diagnostic findings must be reconciled with conflicting evidence in the record. If a previously documented diagnosis is deemed incorrect or obsolete (i.e., subsumed by a more appropriate diagnosis), the examiner must explain why. (b.) For any diagnosed psychiatric disorder, is it at least as likely as not (50 percent probability or greater) the disability had its onset during, was caused by, or is otherwise related to active service? (c.) If the examiner diagnoses PTSD, the examiner should indicate the in-service stressor underlying that diagnosis; and should provide an opinion answering the following questions: 1. Is the claimed stressor(s) adequate to support a diagnosis of PTSD, and; 2. Are the Veteran's symptoms related to the claimed stressor(s)? (d.) The examiner must opine whether the evidence of record, including the Veteran's lay statements and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304 (f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. In offering this opinion, the examiner should discuss whether there are any markers, including but not limited to behavioral changes after the asserted assault, to support the occurrence of MST. If the examiner finds that evidence indicates that a sexual assault occurred during service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service sexual assault. The examiner is asked to specifically consider and address the February 1981 record of the Veteran's divorce; the March 2004 report of separation; and the July 2016, September 2020, May 2021, and August 2021 VA examination and opinions. (e.) The examiner should also consider and address the Veteran's July and August 2016, January 2017 medical treatment statements and December 2017 hearing testimony to identify any potential stressors and opine why or why not they were considered. The examiner is also to address the July 2019 VA examination findings. (f.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (g.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (h.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (i.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. (j.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.