Citation Nr: 21005274 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-16 343 DATE: February 1, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active military service from July1986 to September 1986 and November 1988 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and September 2014 rating decisions by Department of Veterans Affairs (VA) Regional Offices (ROs). Under the provisions of 38 C.F.R. § 3.156(b), new and material evidence received during the appeal period after a decision will serve to preclude that decision from becoming final unless the decision is reconsidered. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that, in determining whether a decision became final, VA is required to determine whether any evidence received within one year of the decision is new and material and prevented the decision from becoming final under 38 C.F.R. § 3.159(b)). In March 2014, the Veteran submitted a letter from a VA physician noting that the Veteran was being treated for PTSD, which developed due to experiencing a sexual trauma and witnessing a helicopter explosion. Therefore, the Board finds that new and material evidence was received during the appeal period after the April 2013 rating decision. Thus, the April 2013 decision did not become final. In January 2019, the Veteran testified at a hearing before a Veterans Law Judge of the Board who is no longer active. A transcript of the hearing is associated with the record. In December 2020 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to the letter; therefore, the Board will proceed with adjudication of the Veteran’s claims. This case was previously before the Board in June 2019. The Veteran’s claim was remanded for additional development. The case is now again before the Board for further appellate action. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. In June 2019, the Board remanded the Veteran’s service connection claim for an acquired psychiatric disorder to obtain a VA compensation examination for his claimed disorder. The Board directed the RO to schedule the Veteran for a full battery of psychological testing, to include the Minnesota Multiphasic Personality Inventory (MMPI) and any other testing deemed necessary by the examiner. The Board also directed the examiner to address the January 2019 favorable opinion by a licensed clinical psychologist and fully explain the basis for any agreement or disagreement with the opinion. The psychologist opined that it is considerably more likely than not that the Veteran’s PTSD is the result of the military sexual trauma (MST) to which he was exposed in his military service. The Veteran was provided a VA examination and medical opinion in June 2020. The examiner reported diagnoses of PTSD and major depressive disorder. The examiner noted that he did not find a marker for PTSD. After completing the June 2020 examination, the VA examiner provided a medical opinion. In the examiner’s evidence comments, he reported that the Veterans Law Judge noted that markers for the claimed MST was not evident in the Veteran’s record. The examiner also noted that the January 2019 evaluator reviewed information outside the Veteran’s medical and military records. The examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner provided the following: Given the statements by the evaluator in January 2019, the veteran’s law judge, and my review of the recorded, it is less likely than not, based on the veteran’s military record, that the diagnosed PTSD was caused by or incurred in-service. While information outside the military record adds some support to the veteran’s claim, the Medical and military record does not support service connected PTSD. The examiner’s opinion is merely a conclusory statement, without a thorough rationale explaining why he concluded that the Veteran’s PTSD was not caused by his military service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Because this conclusory statement does not permit a fully informed evaluation of the Veteran’s claim, the Board finds the opinion to be inadequate. In the section of the June 2020 opinion pertaining to conflicting medical evidence, the examiner provided the following opinion: “Given the statements by the evaluator in January 2019, the veteran’s law judge, and my review of the recorded, it is less likely than not, based on the veteran’s military record, that the diagnosed PTSD was caused by or incurred in-service.” For this opinion, the examiner provided the following rationale: “While the information [in] the evaluator’s three sources of data bolster the veteran’s claim, the fact remains that there is no information backing the veteran’s claim in the medical or military service outside of the veteran’s own claim.” The examiner’s opinion regarding conflicting medical evidence is also conclusory, without a thorough rationale explaining why he disagreed with the opinion offered by the psychologist in January 2019. Moreover, contrary to applicable law, the examiner’s comments and opinions imply that evidence to support the Veteran’s claim must be found in the Veteran’s service personnel and medical records. However, for PTSD claims based on an in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Additionally, the RO did not provide a full battery of psychological testing, to include the MMPI, which was directed to be completed by the Board in its June 2019 decision. The examiner who conducted the VA psychiatric examination explained that “[i]t is my opinion that the MMPI is not truly warranted to determine the presence of PTSD in this case.” By failing to administer to the Veteran a full battery of psychological testing, to include the MMPI, the RO has not complied with the Board’s June 2019 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Due to the deficiencies of the June 2020 medical examination and opinions described above, remand is warranted to schedule a new examination and provide additional addendum opinions to address whether the Veteran’s PTSD was caused by his military service. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. The Veteran must be scheduled for a full battery of psychological testing, to include the Minnesota Multiphasic Personality Inventory and any other testing deemed necessary by the examiner. If scores are elevated on any scales, rather than attributing that result to possibilities, such as a “cry for help” or prevarication, the examiner must render an opinion, based on sound medical judgment, experience, knowledge of the facts of the case, and interview of the veteran, as to the actual cause of the elevated scores. The examiner must be provided access to the Veteran’s VBMS and Virtual VA/Legacy files for review. The examiner must specify in the report that these records have been reviewed. If the examiner diagnoses PTSD, the examiner must identify what evidence independently corroborates the stressor used to diagnose that disability. The examiner must address the January 2019 report offered by the licensed clinical psychologist at Emory University. The basis for any agreement or disagreement with the opinion offered by that psychologist must be fully explained. 4. After completion of all appropriate psychological testing schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any diagnosed acquired psychiatric disorder to include PTSD. The examiner must review the entire claims file, to include this remand, and must specify in the report that these records have been reviewed. All indicated evaluations, studies, and tests should be conducted. Thereafter the examiner must opine whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric disorder, to include PTSD, is related to the Veteran’s active duty service. The examiner must address the January 2019 report offered by the licensed clinical psychologist at Emory University. The basis for any agreement or disagreement with the opinion offered by that psychologist must be fully explained. The examiner should note that, under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to the following: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to the following: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state 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 the examiner, i.e., additional facts are required 5. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.