Citation Nr: 21007490 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-41 714 DATE: February 9, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 2005 to April 2006 and from June 2007 to September 2010. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Newnan, Georgia. In June 2019, the Veteran testified at a videoconference hearing at the VA Regional Office (RO) in Detroit, Michigan, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims file. In July 2019, the Board remanded this case for additional development. The Board’s previous remand directives have been substantially complied with, and the matter is properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The Veteran contends that service connection for an acquired psychiatric disorder, to include PTSD is warranted because the condition first manifested when she served on active duty. The Board previously noted that in April 2015, the Veteran was afforded a VA examination. The Veteran reported her in-service stressor as a fellow soldier’s suicide. While on Honor Guard duty, a soldier walked up to her and her team, saluted her, and later drove to the back of the cemetery, and shot himself. The Veteran later found out that the soldier was upset about being deployed and wanted to kill all soldiers on the ground but stopped because she was female. The Veteran endorsed feelings of being hunted and uneasiness in crowds. She denied manic or psychotic symptoms as well as suicidal or homicidal ideations. Following the Veteran’s psychological evaluation, the VA examiner found that the Veteran did not meet the criteria for PTSD diagnosis. The Board also previously noted that in September 2015, the Veteran underwent another VA psychological evaluation. The Veteran repeated her in-service stressor involving the suicide of the soldier in the cemetery. The Veteran further reported dreams occurring several times a week, emotional distress when exposed to reminders of the event, isolation and avoidance, anxiousness, emotional numbing, irritability, and hypervigilance. Following the Veteran’s psychological evaluation, the VA examiner diagnosed the Veteran with PTSD. The VA examiner noted the Veteran’s experiences of her traumatic event in service as well as significant personal loss further complicated by medical conditions after the described depression beginning in 2002 after the death of her son and that it was at its worst in 2015, precipitated by the death of her son in 2002 and husband in 2012. Post remand by the Board, the Veteran was afforded a new VA examination in February 2020. The noted the Veteran’s symptoms of depressed mood, anxiety, mild memory loss, such as forgotten names, directions or recent events and examiner diagnosed the Veteran with unspecified depressive disorder, and not PTSD. The examiner attributed the Veteran’s depressive disorder to her life stressors, and not to military service, and provided a negative etiology opinion. The Veteran was afforded a new VA mental health examination in December 2020 after she filed a claim new claim in November 2020 for major depressive disorder. The December 2020 VA examiner diagnosed the Veteran with PTSD and provided a positive etiology opinion based on two stressors that the Veteran had previously reported. The Veteran claimed that stressor one was caused when “she buried over 1500 soldiers, picked them up, listened to their mothers screaming.” The Veteran added that she still hears it to this day. She also added that sometimes there was only an arm or a leg in a casket after they were opened upon requests by the family and she recalls the shock this scene caused the family. The Veteran described stressor two as noted above, when another soldier had approached the Veteran and a group of other Veterans, later committed suicide, and the Veteran learned after the suicide that she was mentioned in the suicide note left by that soldier that he intended to kill the soldiers he had approached, but didn’t do it because the Veteran was a female. The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the Veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f). If VA determines that the Veteran did not engage in combat with the enemy, that he did engage in combat but that the alleged stressor is not combat related, or that the stressor is not related to the fear of hostile military or terroristic activity, then a Veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998). VA regulations require that the Veteran must have “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.” VAOPGCPREC 12-99 (Oct. 18, 1999). Furthermore, service in a general “combat area” or “combat zone” or reference to participation in an operation or campaign is not, alone, sufficient. However, a review of the record does not show that that the Veteran served in combat. See DD Form 214. Furthermore, there is no evidence that the Veteran was diagnosed with PTSD in-service or that the stressors are related to fear of hostile military or terrorist activity, or that the Veteran was a prisoner of war for lay testimony alone to be sufficient to corroborate the Veteran’s stressors. See 38 C.F.R. § 3.304(f)(1)-(4). In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). In Kays v. Snyder, 846 F.3d 1208, 1211 (Fed. Cir. Jan. 25, 2017), the Federal Circuit affirmed a Court decision affirming the Board's denial of service connection for PTSD due to the absence of credible supporting evidence of the claimed in-service stressor. The appellant argued that "a current medical diagnosis of PTSD" is evidence on its own that the claimed in-service stressor occurred. The Federal Circuit observed that this "misunderstands the ordinary role of a physician diagnosing PTSD. A physician is not expected to do a detailed investigation of a veteran's claimed in-service stressors. And a physician's diagnosis of PTSD does not necessarily identify what stressor caused it. Indeed, PTSD could result from an event not identified by the veteran. That is why the regulation requires the veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred." In its decision, the Federal Circuit held that Court had applied the correct standard of review, and had "correctly determined that the regulations require credible supporting evidence that the claimed in-service stressor occurred to the veteran" in considering 38 C.F.R. § 3.304(f). See Kays. The record does not reveal that the Veteran’s stressors have been verified by the RO, although the Veteran first reported the in-service stressors by submitting a lay statement in December 2014, during VA examinations and also during the June 2019 hearing testimony before the undersigned VLJ. As the Veteran has been diagnosed with PTSD, stressor verification is needed, and a remand is appropriate. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran a letter (i.e. stressor verification form) requesting any pertinent information to assist VA in attempting to verify her reported in-service stressors. Following receipt of any response, including lay statements of record and review of the testimony provided, appropriate action should be taken to attempt to verify any reported stressors that are capable of verification to include contacting JSRRC and any other appropriate sources. 2. If the search for corroborating records leads to negative results, the RO must notify the Veteran and her representative of this fact, explaining the efforts taken, describing further action, if any, to be taken, and affording them the opportunity to respond. The RO should also follow up on any additional action suggested by each appropriate source contacted. 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). a. 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. b. If the Veteran is diagnosed with a personality disorder and PTSD - The examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. c. 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. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested 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, or the examiner does not have the needed knowledge or training). (Continued on the next page)   4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, furnish the Veteran and her representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.