Citation Nr: 21068459 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-28 782 DATE: November 10, 2021 REMANDED Service connection for psychiatric disability, to include posttraumatic stress disorder, (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1976 to December 1981 and from December 1981 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran presented sworn testimony at a hearing before the undersigned. The Veteran's claim of service connection for PTSD has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for posttraumatic stress disorder (PTSD) is remanded. The Veteran asserts that he developed PTSD while in service due to several incidents where he was a victim of sexual assault; due to these repeated acts of military sexual trauma (MST), he has been scarred for life and suffered with the psychiatric disability since that time. See September 2019 Form 9. He stated he has extreme difficulty learning to trust others, unable to carry on a relationship and has trouble sleeping and recurring nightmares. Veteran added that he felt ashamed and embarrassed of the incidents at the time and did not seek help or treatment. See June 2017 Correspondence. The Veteran was afforded a VA examination for PTSD in September 2017. The VA examiner diagnosed the Veteran with dependent personality disorder, which the examiner noted would not be caused by, exacerbated or aggravated by military service. The examiner offered a provisional diagnosis of PTSD and held "it is beyond the scope of this psychologist's practice as C&P examiner to determine whether a specific event occurred during a Veteran's active military service." The absence of so-called behavioral markers in a Veteran's C-file, including STRs, is not evidence that an MST or personal assault did NOT occur in service; however, the examiner fell short of diagnosing PTSD as Veteran reported long-standing history of depression that began prior to service, and the examiner held it is possible that the Veteran's symptoms associated with PTSD may actually be related to his depression. See September 2017 C&P Exam. The service connection claim was denied in a September 2017 rating decision as the RO noted the examiner did not provide a definitive diagnosis of PTSD and stated the stressors and markers were not enough to provide or disprove the event. See September 2017 Rating Decision. In his November 2021 Board hearing, the Veteran testified that he has continued to seek treatment for his PTSD symptomatology, was last seen at a VA facility in February 2020 after which his counselor went into private practice. Veteran stated he seeks treatment currently at a private organization and is searching for a counselor. The Veteran added that he feared for his life after being victimized for sexual assault while in the Navy and was threatened to be thrown overboard if he were to report the incidents or talk to anybody about the incidents. During the duration of his service, he was afraid to go out to sea because it reminded him of the incidents that he went through; after discharge from service, he was ashamed of what transpired and described himself as "lost." See November 2021 Hearing Transcript. The VA medical treatment records are only available in the claims folder until 2017; Veteran has testified that he sought VAMC treatment through February 2020 and continues to visit a private mental health organization currently. Therefore, the claim must be remanded to obtain any outstanding and relevant VA treatment records and private treatment records. Additionally, in light of the Veteran's competent and credible testimony, the Board finds that a remand is also necessary to afford the Veteran another VA psychiatric examination since the September 2017 VA PTSD examination provided a provisional diagnosis of PTSD, which is not a definitive diagnosis and cannot be considered a diagnosis of PTSD for adjudication purposes. The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records and private treatment records and associate those documents with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric symptoms as well as any relationship between any his psychiatric impairment and service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a psychiatric examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of any psychiatric disability found to be present. A diagnosis of PTSD must be ruled in or excluded. The examiner must opine as to whether it is at least as likely as not that any currently diagnosed psychiatric disorders are etiologically related to the Veteran's period of service. The examiner should specifically consider the Veteran's credible account of his sexual assault. If the examiner is unable to provide an opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would allow for a more definitive opinion should be indicated. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, 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.