Citation Nr: A21020258 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200526-87327 DATE: December 20, 2021 REMANDED Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to June 1993. The rating decision on appeal was issued in May 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2020 decision on appeal. 38 C.F.R. § 20.301. In order to serve the Veteran's stated interests, the Board has broadened the Veteran's claims of service connection for PTSD as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curium). Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. A remand is required to correct duty-to-assist errors that occurred prior to the May 2020 rating decision on appeal. A review of the record reflects that the Veteran's service treatment records prior to 1986 are not associated with the record. In May 2019, VA requested the Veteran's service treatment records from the National Personnel Records Center (NPRC). In a May 2019 response, NPRC indicated that all service treatment records were provided. VA policy indicates that, when a service member has completed their service obligation in the Army and that period of service ended between October 16, 1992 and December 31, 2013, the service member's records were forwarded to the Records Management Center (RMC) for storage. Here, it does not appear that VA requested the Veteran's service treatment records from the RMC or any other storage facility. Furthermore, it does not appear that VA informed the Veteran that his service treatment records prior to 1986 were unavailable or requested the Veteran to provide copies of the records he has in his possession. A remand is required to correct this duty-to-assist error. In May 2020, VA obtained a VA examination and medical opinion. Despite the Veteran admitting to having a bad memory, the examiner indicated that several test results could be associated with malingering (emphasis added) and that the examiner was "reluctant" to diagnose PTSD or any other trauma/stressor related disorder based on the Veteran's self-reports. The examiner explained that while the Veteran experienced night sweats in service, these could be attributed to other conditions. The examiner indicated that while the Veteran may have some reactive anxiety/dysphoria, these were likely the result of current life stressors. Thus, the examiner indicated that no diagnosis could be rendered, but encouraged the Veteran continue to remain engaged with mental health treatment with VA. The Board finds that the use of speculative language renders the May 2020 medical opinion inadequate. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). Furthermore, if the examiner believed that rendering a diagnosis would require speculation, the examiner did not state whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The matter is REMANDED for the following actions: 1. Request that the Veteran provide a copy of any service treatment records in his possession 2. Obtain the Veteran's complete service treatment records from the Records Management Center or other appropriate facility. If service treatment records prior to 1986 cannot be located, VA should include a memorandum regarding their unavailability in the claims file and inform the Veteran of such. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. (Continued on next page) If the examiner finds that it is not possible to diagnose or rule out an acquired psychiatric disorder without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.