Citation Nr: 21066887 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 11-15 098A DATE: November 2, 2021 REMANDED Service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based upon unemployability due to service-connected (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1970 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of a Department of Veteran Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. In April 2018, the Board reopened the Veteran's claim and remanded it to afford the Veteran a VA examination. In December 2018, the Board remanded the claim for further development because the VA examiner did not consider all the evidence to which the Board called attention. In August 2019, the RO issued a supplemental statement of the case that continued to deny service connection for an acquired psychiatric disorder and for a TDIU. The Veteran submitted a written statement continuing to disagree with the decision. He also submitted a notice of disagreement (VA Form 10-182) opting into the Appeals Modernization Program adjudication process and selecting direct review by the Board. In December 2019, the Board erroneously issued a decision under the legacy adjudication process. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court), challenging the use of the legacy system. In April 2020, the Court vacated the decision and remanded the appeal for compliance with a Joint Motion for Remand. The parties required the Board to explain whether it had jurisdiction to review the claims under the legacy or AMA system. In June 2020, the Veteran's representative reversed course contending that the legacy system should be used because the Veteran did not check a specific box on the Form 10-182 opting out of the legacy system even though the form clearly indicated a desire for AMA direct review. The representative used the opportunity to submit new evidence. In July 2020, the Board remanded the claims to resolved conflicts in the medical evidence. In January 2021, the Board denied service connection for an acquired psychiatric disorder and for a TDIU finding that weight of competent and credible evidence did not support the Veteran's claims. See January 5, 2021 BVA Decision, pp. 6-7. In April 2021, the Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (Court), resulting in Memorandum Decision which vacated the Board's decision. In pertinent part, the Court found that the Board failed to address the Veteran's challenge to the competency of an August 2020 VA medical examiner's qualifications, specifically to render an opinion concerning military sexual trauma (MST) without documented completion of "required training about claims related to [MST]". As such, the Board erred in failing to show why the August 2020 VA examiner was competent to conduct the VA examination at issue including on MST. The Court also vacated the denial of a TDIU as it was inextricably intertwined with his claim for service connection. An informed evaluation the August 2020 VA examiner's competence to render an MST opinion necessitates additional development. Here, the Board observes that it is precluded from substituting its own judgment on a medical matter, to include professional proficiency/competence in a highly specialized medical sub-fields, such as MST. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991), The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to the contended acquired psychiatric disorder. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Contact the credentialing/compliance department of the Veterans Benefits Administration (VBA) and if necessary, the Veterans Health Administration (VHA) to ascertain what exact qualifications are required in full (specialized training, coarse work, clinical rotations, residencies, examinations, etc.), if any, for a psychologist or psychiatrist to perform a VA MST examination and render an etiological opinion as to MST. 4. Based upon these qualifications, the RO must explain and reference to the qualifications with specificity whether the August 2021 VA examiner was or was not competent to perform a VA MST examination and render an etiological opinion as to MST. A detailed explanation with citations to education, certifications, and training would be helpful to the Board. 5. In the case of the latter ("not competent to perform a VA MST examination and render an etiological opinion as to MST"), the RO must arrange for a new examination with an VA psychologist or psychologist with MST qualifications (spelled out explicitly in the body of the examination report). Although an in-person examination is preferred, an examination by electronic means is acceptable if necessary. This psychiatrist/psychologist must review the lay and medical evidence of record and indicate such a review in the body of the examination report. The Board requests that the psychiatrist/psychologist address each and every lay statement of record, including hearing testimony. Upon completion of an interview and all necessary psychometric testing, the psychiatrist/psychologist must consider each and every finding in the June 2020 private psychologist-consultant's report and this consultant's October 2020 addendum letter. If this "MST competent" VA psychiatrist/psychologist does not agree with any of the private consultant's findings, she or he must explain why and what evidence, or lack thereof, supports such. The Board encourages references to any and all peer-reviewed literature on point to analogous MST claims. Upon completion of the above directed tasks, the clinician should respond to the following inquiries: a. What, if any, diagnosis, according to DSM-5 criteria, is apposite to the Veteran's contended acquired psychiatric disorder? AND b. Whether it is at least as likely as not (50 percent or more) that the diagnosed disorder, if any, was incurred in, caused by, aggravated by, or otherwise attributable to, any incidence of service? The VA psychiatrist/psychologist should keep in mind that the Veteran is competent to report his symptoms and history. The examiner should consider the credibility of lay evidence in conjunction with the remainder of the evidence. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the psychiatrist/psychologist rejects the Veteran's reports, she/he must provide an explanation for such rejection. Complete, clearly-stated rationales for the conclusions reached must be provided. The Board reminds the psychiatrist/psychologist that merely stating that it is his or her opinion that a disorder was not caused or aggravated by a service does not suffice. An explanation takes into account the record and pertinent psycho-medical principles and the rationale should include citation to pertinent evidence and/or psycho- medical principles which form the opinion. 6. Upon completion of the above tasks, readjudicate the Veteran's service connection claim and claim for a TDIU. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.