Citation Nr: 21006522 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-29 917 DATE: February 4, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to June 1983. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the RO denied service connection for an acquired psychiatric disability in July 2015. The Veteran then properly perfected an appeal of the denial of that issue to the Board. 38 C.F.R. § 20.302 (2018). On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). This law created a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Prior to the effective date of the AMA, Veterans with claims pending in the legacy system could opt to have their claims adjudicated under the AMA by choosing to participate in VA’s test program, the Rapid Appeals Modernization Program (“RAMP”), by using the prescribed form. In June 2018, the Veteran was issued a supplemental statement of the case again denying service connection. Subsequently, that same month the Veteran submitted a “RAMP Selection” form, accompanied by a statement from his then-representative that he wished all eligible appeals to be reviewed under RAMP. However, the form submitted was not the form required to opt a legacy appeal into RAMP, i.e. the prescribed “RAMP Opt-In” form. Instead, the form submitted was the form used to appeal decisions issued after a legacy appeal had opted-in to RAMP and the Veteran had received a new decision issued under RAMP. Indeed, the form the Veteran submitted specifically states that it is used “to seek additional review under RAMP.” As the June 2018 attempt to opt-in to RAMP did not use the necessary form, it is not valid. Therefore, the Board will continue to process the current appeal under the legacy appeals system. 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, while the Veteran’s claim has been thus far adjudicated as one for service connection for posttraumatic stress disorder (PTSD), the Board has recharacterized it as a claim for service connection for an acquired psychiatric disability generally. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disability. In conjunction with his initial claim for service connection for PTSD, the RO requested in February 2015 correspondence that the Veteran provide further information concerning his claimed in-service stressors. The Veteran did not respond, and a May 2015 memorandum notes that there was insufficient information in the file to attempt to verify any in-service stressors. However, the Veteran has subsequently identified several in-service stressors, in particular during his June 2020 hearing testimony before the undersigned. As the Veteran has since provided additional information concerning his alleged in-service stressors, the Board finds that a remand is warranted so that attempts may be made to verify the reported stressor events. In January 2015, the Veteran provided a private medical opinion stating that he had a diagnosis of PTSD in conformity with the DSM-IV-TR, and that the PTSD was related to traumatic events in-service. However, effective August 4, 2014, the regulations pertaining to psychiatric disorders were updated so that all psychiatric diagnoses must be in conformity with the diagnostic criteria in the DSM-5. 79 Fed. Reg. 45,093 (Aug. 4, 2014) (eff. Aug. 4, 2014). As the Veteran’s claim was filed after the effective date of the amendment, the January 2015 diagnosis in conformity with the DSM-IV is insufficient for VA purposes. However, the opinion does at a minimum indicate the presence of symptoms indicative of a current psychiatric disability and links the disability to the Veteran’s period of service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board finds that a remand is necessary so that an opinion can be obtained concerning the nature and etiology of the Veteran’s psychiatric disability. Finally, the Board notes that in February 2015 correspondence the RO requested that the Veteran submit or authorize for release private psychiatric treatment records from Dr. C.M. However, the Veteran at no point submitted the records or authorized their release. Thus, VA made adequate attempts to obtain the records at that time. 38 C.F.R. § 3.159(c)(1). Since that point however, the Veteran submitted an additional May 2020 letter from a private provider indicating that he continues to receive private psychiatric treatment. As the current appeal must be remanded anyway for the reasons stated above, on remand the RO should also request that the Veteran submit or authorize for release any outstanding private treatment records relevant to his claimed psychiatric disability, to include from Family and Psychological Services, Inc. The matters are REMANDED for the following action: 1. Make additional, appropriate attempts to verify the Veteran’s claimed in-service stressors, as reported during his June 2020 hearing testimony. 2. Contact the Veteran and request that he submit or authorize for release all private treatment records relevant to his psychiatric disability, to include from Family and Psychological Services, Inc. For all records authorized for release, if the search for these records is negative the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s psychiatric disability. The examiner should answer the following: a) Identify all current psychiatric disabilities. If the examiner determines that a diagnosis of PTSD is not warranted, the examiner should clearly explain why such a diagnosis is not warranted based on the criteria in the DSM-5. b) If a diagnosis of PTSD is warranted, is it at least as likely as not (a fifty percent probability or greater) that the PTSD is causally related to an in-service stressor? In answering questions (a) and (b), attention is invited to a January 2015 private medical opinion providing a diagnosis of PTSD under the DSM-IV-TR, and stating that the PTSD was related to in-service stressors and aggravated by post-service events (labelled “Medical Treatment Record - Non-Government Facility” – uploaded 1/29/15). c) For any other diagnosed psychiatric disability, is it at least as likely as not (a fifty percent probability or greater) that the disability is causally related to the Veteran’s active service? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.