Citation Nr: A21020134 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190418-18269 DATE: December 16, 2021 REMANDED The issue of entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, generalized anxiety disorder, cannabis use disorder, and alcohol use disorder, is remanded. REASONS FOR REMAND The Veteran had active service from May 1975 to May 1979. By way of history, a Department of Veterans Affairs (VA) Regional Office (RO) issued a January 2014 rating decision under the legacy system, denying the Veteran service connection for a major depressive disorder and/or an acquired mental condition. The Veteran filed a notice of disagreement (NOD) in February 2014, and the RO issued a statement of the case (SOC) in November 2016. The Veteran then submitted a VA Form 9 (substantive appeal) in November 2016. In April 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the Higher-Level Review (HLR) lane. In March 2019, the RO issued a RAMP rating decision, which is the decision on appeal. In April 2019, the Veteran timely appealed the March 2019 rating decision to the Board of Veterans' Appeals (Board) by requesting the AMA Hearing Lane, indicating that he wished to have a Board hearing and the opportunity to submit additional evidence in support of his appeal. By selecting the hearing option, he was permitted to provide additional evidence within 90 days of the date of the hearing. In September 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the Veteran did not provide additional evidence after the hearing was held. The Veteran originally claimed entitlement to service connection for PTSD and a major depressive disorder. However, medical evidence indicates diagnoses of generalized anxiety disorder, cannabis use disorder, and alcohol use disorder, among others. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all, and the claim is recharacterized as such. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection The Veteran contends he has an acquired psychiatric disorder that is caused by his military service, to include as due to an in-service personal assault he experienced. He testified at the Board hearing that he was attacked from behind by a fellow soldier while stationed on a ship in Hawaii. See Board Hearing Transcript at 5. He also alleges other occurrences of verbal and physical abuse he encountered in service. See Veteran's August 2012 Lay Statement. Initially, the Board notes that the March 2019 AMA rating decision made the following favorable finding as to the claim for service connection for an acquired psychiatric disorder: personal records show problems with misconduct. For instance, the Veteran's military personnel records (MPRs) dated in March 1976 and May 1976 document occurrences of misconduct; MPRs dated in October 1976 reveal drug use; June 1976 and May 1978 MPRs show unauthorized absences; and there is a February 1979 documentation in the MPRs that the Veteran was disrespectful to a petty officer. After a review of the evidence of record in the claims folder at the time of the March 2019 rating decision, the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, generalized anxiety disorder, cannabis use disorder, and alcohol use disorder, is remanded to correct a duty to assist error that occurred prior to the March 2019 rating decision on appeal. Specifically, the Board finds that the March 2019 VA examination for PTSD is inadequate. The examiner diagnosed the Veteran with cannabis use disorder, severe, and determined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. She stated that "acquired mental condition" is not a DSM-5 diagnosis." The examiner explained that the Veteran's symptoms are caused by his cannabis use disorder, due to his "chronic use of marijuana." The Board finds that the examiner's opinion does not present a complete and accurate picture of the Veteran's psychiatric disorders. Contrary to the examiner's opinion, a VA staff psychiatrist, who indicated that he had been treating the Veteran for various psychiatric disabilities since October 2007, noted that the Veteran had several mental disabilities that conform to the DSM-5 criteria. See VA Staff Psychiatrist's Letter, December 2, 2013. He noted that the Veteran currently carries DSM-5 Axis I mood and anxiety diagnoses of recurrent major depressive disorder, generalized anxiety disorder, and what is equivalent to PTSD, due to an incident of exposure to violence aboard the U.S.S. Sutherland in August 1978. He explained that the Veteran had consistently been on antidepressant and/or anxiolytic psychotropic medications since at least October 2007, but with only a partial response. He further explained that these medications have not sufficiently improved the Veteran's symptoms of depression and/or anxiety. In addition, throughout the Veteran's VA treatment records, it is consistently noted that he has a current diagnosis of major depressive disorder. Other psychiatric conditions are noted, including generalized anxiety disorder and cannabis use disorder. The March 2019 VA examiner seemed to focus her opinion entirely on the Veteran's use of marijuana, without discussing the Veteran's alleged in-service personal assault and personal misconduct, and any relationship between the assault, misconduct, and the Veteran's psychiatric disorders. The Veteran's representative addressed this observation at the Board hearing, stating that the examiner seemed to attribute all the Veteran's problems to cannabis use, which is not supported by the medical records. See Board Hearing Transcript at 2. The Veteran also testified that when he told the VA examiner that he was diagnosed with PTSD, the examiner immediately became skeptical of the diagnosis and accused VA doctors of being "pill pushers." See Board Hearing Transcript at 3. The Veteran further indicated that he felt the examiner would dismiss his complaints, so he shut down, explaining that "it was like a lost cause to even talk." Id. Due to the noted deficiencies in the March 2019 VA examination report, combined with concerns from the Veteran and his representative at the Board hearing regarding such report, it is necessary to remand this issue for the RO to schedule the Veteran for another VA examination for his psychiatric disabilities. Where VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, there is a duty to assist error due to the inadequate March 2019 VA examination; thus, another examination is necessary for the Board to make a well-informed decision on the Veteran's claim. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for mental conditions with a different examiner to determine the nature and etiology of any current acquired psychiatric disorder, to include PTSD, major depressive disorder, generalized anxiety disorder, cannabis use disorder, and alcohol use disorder, that may be present. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and address the following: a. Are there indications (e.g., behavioral changes) that the Veteran experienced a personal assault during service? The examiner should address whether any behavioral changes tend to suggest that a traumatic event occurred during service. The examiner should address whether the issues related to substance abuse and misconduct were related to the allegations of personal assault. In answering this question, the examiner should review the Veteran's service personnel records (addressed above). b. If PTSD is diagnosed, is it at least as likely as not (i.e., probability of 50 percent or more) a result of the reported personal assault or other incident during service? The examiner should offer an opinion as to whether the reported in-service stressor is sufficient to support a PTSD diagnosis. c. Identify all other diagnosed psychiatric disorders, other than PTSD. In doing so, the VA examiner should address whether any previous diagnoses documented in the record were incorrect, if applicable. For any diagnosed psychiatric disorder other than PTSD, is it at least as likely as not (i.e., probability of 50 percent or more) that any diagnosed psychiatric disorder had its onset in service or is otherwise related to service, to include the Veteran's reports of experiencing a military personal assault in service? The examiner is also asked to address a December 2013 letter from a VA staff psychiatrist, which discusses the Veteran's mental disorder diagnoses, including PTSD. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions and a discussion of the facts and medical principles involved should be provided. If the examiner is unable to provide an opinion, he or she should explain why. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, Associate 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.