Citation Nr: 21071290 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-11 792 DATE: November 30, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and a major depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1978 to August 1982. In October 2018, the Veteran testified at a video-conference hearing before the undersigned. A transcript of the hearing is of record. In February 2019, the Board of Veterans' Appeal (Board) issued a decision that denied the application to reopen a claim of service connection for an acquired psychiatric disorder. The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent December 2019 order, which incorporated the parties of Joint Motion for Remand (JMR), the Court vacated and remanded the February 2019 Board decision. As to the characterization of the issues on appeal, the record shows that the regional office (RO) denied service connection for depression in April 2014. The Veteran filed a "new" claim for service connection for a psychiatric disorder, characterized as PTSD, major depressive disorder, and a psychosis, in March 2017. Just as in the previous evidence of record, the Veteran maintained that he suffered from a psychiatric disorder as a result of his active service. Accordingly, the Board will broaden the claim and consider whether new and material evidence has been submitted to reopen a broader claim for an acquired psychiatric disorder and, if so, if service connection is warranted for any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In June 2020, the Board reopened the claim of service connection for an acquired psychiatric disorder and remanded the newly reopened claim for additional development. Entitlement to service connection for an acquired psychiatric disorder to include PTSD and a major depressive disorder is remanded. In June 2020, the Board remanded the claim to, among other things, obtain medical opinions as to the current diagnoses of the Veteran's acquired psychiatric disorder as well as etiology opinions as to all the Veteran's acquired psychiatric disorders which, at that time, included an adjustment disorder with depressed mood, a psychosis, and a major depressive disorder. Moreover, the post-Remand record shows that in August 2021 and September 2021 the RO obtained etiology opinions from a VA examiner. However, the Board does not find any of the opinions provided by the VA examiner adequate. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). The Board has reached this conclusion for the following reasons: 1st Even though the record on appeal showed that the Veteran was diagnosed with an adjustment disorder with depressed mood and a psychosis during the pendency of the appeal, the August 2021 examiner neither provided a clear pinion as to whether the psychosis was diagnosed in the first post-service year nor whether an adjustment disorder with depressed mood and/or a psychosis was due to his military service (see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding, in substance, that the Board in adjudicate claims for service connection must consider all disabilities diagnosed during the pendency of the appeal even though not diagnosed at a recent VA examination): 2nd The August 2021 VA examiner in neither his August 2021 nor September 2021 opinion provided an adequate medical rational for why neither of the acquired psychiatric disorders diagnosed at the VA examination (i.e., PTSD and a major depressive disorder) are due to his military service but instead merely listed some of the Veteran's post service complaints and medical records (see Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty)); and 3rd Neither the August 2021 nor September 2021 opinion appeared to consider the Board's remand instructions regarding the fact that all acquired psychiatric disorders other than PTSD do not required a confirmed stressor and PTSD only requires a confirmed stress or if the PTSD is due to fear of hostile military or terrorist activity like being stationed in a war zone. See 38 C.F.R. § 3.303; 38 C.F.R. § 3.304(f). Therefore, the Board finds that another Remand is required to obtain adequate VA etiology opinions. See 38U.S.C.§5103A(b); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the PTSD part of the current appeal, the Board notes that the Veteran in writings to the RO and at his August 2021 VA examination identified the one in-service stressor-seeing a soldier injured in a vehicle accident with a truck while in the military when the soldier changing the tire had his leg broken when the truck fell off the jack and landed on his leg. Moreover, at the post-service VA examination in August 2021 the Veteran was provided for the first time with a diagnosis of PTSD. Given the above, the Board finds that while the appeal is in Remand status VA now has a duty to attempt to verify the above in-service stressor. See 38 C.F.R. § 3.304. Specifically, the RO need to contact the appellant and request that he provide it with additional details about the accident to include, among other things, the name of the injured solder as well as the approximate date of the accident (within a 3-month period) and where the accident took place and to thereafter contact the appropriate service department to obtain records to verify the occurrence of the accident to include copies of any accident reports. While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran's representative or the Veteran should submit any new pertinent evidence that the Board does not have. 3. Contact the appellant and request that he provide the RO with additional details about the stressor accident he identified (i.e., seeing a soldier injured in a vehicle accident with a truck while in the military when the soldier changing the tire had his leg broken when the truck fell off the jack and landed on his leg) to include, among other things, the name of the injured solder as well as the approximate date of the accident (within a 3-month period) and where the accident took place. After obtaining the above information from the Veteran, contact the appropriate service department to obtain records to verify the occurrence of the accident to include copies of any accident reports. All actions to verify the Veteran's stressors should be fully documented and associated with the record. If the Veteran's PTSD stressor cannot be verified the RO must say so and notify the Veteran and his representative of this finding. 4. In order to comply with the last Remand, obtain from a suitably-qualified medical professional opinions as to the etiology of all the acquired psychiatric disorders the Veteran was diagnosed with during the pendency of the appeal to include an adjustment disorder with depressed mood, a psychosis, major depressive disorder, and PTSD. All opinions must be supported by adequate medical rational. An examination should be conducted only if it is required by the examiner. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, if any, the examiner is asked to address the following: i. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder including an adjustment disorder with depressed mood, a psychosis, major depressive disorder, and PTSD were caused by the Veteran's military service even if the psychiatric disorder was not diagnosed by VA in August 2021 and September 2021. ii. Provide an opinion as to whether any psychosis developed in the first post-service year. The examiner when providing the above opinions, should consider and discuss the Veteran's lay claims regarding in-service events and observable adverse psychiatric symptomatology since that time including the reported behavioral changes as well as the veracity of his claims. In this regard, while the Board is asking the examiner to provide his/her opinion as to the Veteran's veracity when providing his history at the time of the examination, the Board also recognizes the fact that it is ultimately its' duty and responsibility to weight the credibility of the appellant's statements. The examiner when providing the above opinion, should consider and discuss the Veteran's service treatment records and service personnel records including the history of multiple disciplinary problems, including Article 15s, with one offense recorded during basic training in 1980 and the rest during active duty training starting in 1987. In providing answers to the above questions, the examiner should consider the fact that all acquired psychiatric disorders other than PTSD do not required a confirmed stressor and PTSD only requires a confirmed stress or if the PTSD is due to fear of hostile military or terrorist activity like being stationed in a war zone. See 38 C.F.R. § 3.303; 38 C.F.R. § 3.304(f). In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.