Citation Nr: 21073348 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 20-23 425 DATE: December 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran had active military service from February 1960 February 1963. In support of this claim, the Veteran testified during a July 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The claims file includes a VA Form 21-22, completed in 2016, appointing the Florida Department of Veterans Affairs as the Veteran's representative; however, during his more recent July 2021 hearing before this Board, the Veteran was accompanied instead by someone from the Pennsylvania Department of Military Affairs who indicated that the Veteran had changed his representation. In November 2021 VA correspondence, the Veteran was notified that, if he wanted to have the Pennsylvania Department of Military Affairs represent him in this appeal, he needed to complete a VA Form 21-22 officially making this change, and if VA did not receive notification of the change within 30 days, it would assume that he is continuing to be represented by the Florida Department of Veterans Affairs. To date, he has not completed and submitted any additional VA Form 21-22 to change his representative. Therefore, the Board must continue recognizing the Florida Department of Veterans Affairs as his representative in this appeal. In any event, the Board finds that a remand of this claim is warranted to obtain an addendum opinion to a May 2018 Disability Benefits Questionnaire (DBQ). The Veteran has asserted the following stressors to support his claim of entitlement to service connection for posttraumatic stress disorder (PTSD): 1) one night while on guard duty, he was struck, by someone trying to break into the food supply, in the head over the left eye causing him to lose consciousness; 2) while on guard duty, he was approached by someone who did not stop after the Veteran yelled at him to stop, so the Veteran fired a weapon over his head; 3) he had the wrong tooth pulled out by a drunken dentist; and 4) he witnessed a Korean shot to death when the Korean was caught breaking into a bunker where missile warheads were kept, and the Veteran had to carry the dead body to the ambulance. None of the Veteran's claimed stressors has been verified; thus, they cannot form the basis for a diagnosis of PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (meaning according to the Diagnostic and Statistical Manual of Mental Disorders (DSM)), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f). The Board acknowledges the private counseling records noting the Veteran has PTSD; however, the Board finds that they lack significant probative value. Notably, they list the Veteran as a combat Veteran; but, by all accounts, he did not engage in combat during his service. 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) and (f)(2), pertaining to combat Veterans, requires that the Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality and does not apply to Veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). These records also do not provide adequate rationale by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, supporting a diagnosis under DSM-5 due to fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). Finally, these records do not support that he has PTSD due to his alleged personal assaults (hit on head and removal of tooth). 38 C.F.R. § 3.304(f)(5). So, neither of these claimed stressors is supported by the record or involves one of the enumerated exceptions where independent corroboration of their occurrence is not required. In August 2017, the Veteran reported current symptoms of a depressed mood/anxiety/situational stress prompted by medical concerns. With regard to service, he stated that one night on patrol, he had been hit on the head by someone trying to break into the food supply. An October 2017 VA record (Dr. Martone) reflects that the Veteran reported having a depressed mood and decreased motivation for a few years and experiencing nightmares. He also reported hearing voices at night, and seeing his deceased mother for years, and anxiety associated with his various medical illnesses. For traumatic incidents in service, he listed once shooting over the head of someone, and having his tooth pulled. It was noted that he did not have trauma. It was noted that his case was "somewhat challenging, as it appears [that] he was somewhat suggestible" during the clinical interview "given his symptom report concerning AVH and PTSD symptoms. His most consistent symptoms are related to anxiety and depression and he has been diagnosed with Unspecified depressive disorder and Unspecified anxiety disorder." A May 2018 DBQ reflects that the Veteran does not meet the criteria for PTSD, but that he has "depressive disorder due to medical condition with mixed features" and "insomnia due to medical condition". His medical diagnoses relevant to his mental health disorder were listed as sleep apnea, blocked arteries, pineal tumor, scars on the lungs, poor balance likely due to inner ear problems, and pain in the left leg and foot. A July 2018 VA clinical record reflects that he had continued symptoms of depression in the context of his wife having had a cerebrovascular accident (CVA), i.e., stroke. In October 2018, the Veteran was hospitalized at the Vines Hospital for psychiatric care due to high risk of homicide against the president of his home-owner's association. The Veteran was diagnosed with major depressive disorder with psychotic features. He was also noted to have coronary artery disease, sleep apnea, and hypertension; stressors were noted to be "poor coping skills and social stressors". In sum, the most probative evidence indicates that the Veteran has an acquired psychiatric disorder related to medical conditions. The Veteran is in receipt of service connection for bilateral hearing loss and tinnitus. A March 2017 audiology note reflects that the Veteran reported that sometimes his hearing loss causes him to feel frustrated and nervous and causes him to feel depressed. The 2018 DBQ examiner did not discuss the Veteran's hearing loss or tinnitus. Thus, a supplemental opinion is warranted. In addition, VA clinical records prior to 2017, if any, may be useful, and complete Vines Hospital records from his in-patient treatment in 2018 may be useful. Accordingly, this claim is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all treatment at the Vines Hospital during 2018. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Also appropriately notify him if unable to obtain these additional records. 2. Obtain all the Veteran's VA treatment records prior to February 2017, if any. 3. Thereafter, obtain an addendum opinion to the May 2018 DBQ. The examiner is specifically asked to opine on whether it is as likely as not (50 percent or greater probability) that the Veteran's service-connected bilateral hearing loss and/or tinnitus cause or aggravate an acquired psychiatric disability (e.g., depression, insomnia, and/or anxiety). (The examiner should not consider whether the Veteran has PTSD because his stressors have not been verified.) Regarding aggravation, if it is as likely as not that the Veteran's service-connected bilateral hearing loss and/or tinnitus aggravates (worsens) an acquired psychiatric disability, the examiner should state, if feasible, the degree of worsening (i.e., the baseline of the disability before aggravation in comparison to the degree of severity after aggravation). The commenting examiner should consider the pertinent evidence of record including: a) a March 2017 VA audiology note which reflects that the Veteran reported that sometimes his hearing loss causes him to feel frustrated and anxious, and depressed; b) August and October 2017 VA clinical records noting depressed mood/anxiety/situational stress prompted by medical concerns, but that the Veteran appears "somewhat suggestible"; c) the May 2018 DBQ; d) a July 2018 VA clinical record reflecting that he had continued symptoms of depression in the context of his wife having had a stroke (CVA); e) the 2018 Vines Hospital records; and f) Chestnut-Ridge Counseling records. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. If an adequate response cannot be provided without actual examination of the Veteran, schedule him for an additional examination, but this is left to the reviewing clinician's discretion. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.