Citation Nr: 21007659 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-08 837 DATE: February 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety, is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Navy from September 1989 to August 1993. This matter is on appeal from a June 2014 rating decision. The Veteran was afforded a November 2018 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. In a May 2019 Board decision, the Board denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in February 2020, issued a joint motion for partial remand (JMPR) to vacate and remand the issue back to the Board. The Board remanded this appeal in August 2020 for further development. The Board finds that remand is warranted for additional development. The Board notes that the Veteran initially filed a claim for PTSD in August 2013. The Board expanded the issue to an acquired psychiatric disorder in May 2019. The most recent VA examination regarding the nature and etiology of the Veteran’s claimed disorder was held in August 2014. The examiner found the Veteran did not meet the criteria for a diagnosis for PTSD at the time and diagnosed unspecified depressive disorder. Review of the medical treatment record shows in April 2019 the Veteran was found with a positive PTSD screening result and in October 2019 and November 2019 was assessed with complex PTSD. Accordingly, a new VA examination is needed to help determine if the Veteran now has PTSD and if it is related to his active duty service. Review of the claims record shows the Veteran has identified several stressors during his service to include an April 1990 incident on the USS Forrester where he witnessed a fellow soldier go overboard and was lost at sea; an October 1992 incident where the USS Saratoga accidently fired missiles at a friendly ship during a war games exercise; stating that prior to arriving on the USS Saratoga the ship capsized and several people to include his friend died; while assigned to the USS Forrestal a plane crashed into the sea, a man went overboard and died, and a plane crushed a man on deck; and being assaulted by an officer. Review of the record shows submitted military personnel records that show an investigation report on the October 1992 incident with the USS Saratoga, however it does not appear that any further development was performed to verify the Veteran’s claimed reported stressors and traumatic events. Finally, the Veteran at the November 2018 hearing testified that he had sought treatment and counseling with the Hartford Veteran Center since 2005 or 2006. Review of the record shows that records of these visits or sessions have not been associated with the record. The February 2020 Court JMPR noted the Board did not satisfy the duty to assist in attempting to obtain these records; therefore, the August 2020 Board decision remanded the appeal to obtain the records. However, review of the record does not show any correspondence or development to show that another attempt was made to obtain these records or notify the Veteran of such attempts to obtain the record. As such, under these circumstances, the Board also finds the August 2020 Board remand directives were not substantially complied with; therefore, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the August 2020 Board remand instructions; verification of the Veteran’s claimed stressors and traumatic events; and examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder to include PTSD, depressive disorder and anxiety, is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Request that the Veteran provide the names and addresses of any and all healthcare providers who provided treatment for his claimed acquired psychiatric disorder; in particular, records of treatment from any private provider to include the Hartford Veteran Center from August 13, 1993 to the present. (a.) After obtaining any required authorizations for the identified source(s), obtain the Veteran’s treatment records. All actions to obtain these records should be documented in the claims file. The RO must make two attempts to obtain private treatment records or make a finding that further requests would be futile. If no records are obtained, the RO must (1) notify the Veteran of the records that were sought, (2) inform him of the efforts to obtain them, and (3) inform him that the claim will be rated based on the evidence of record but that the claim may be readjudicated if the records are later submitted. See 38C.F.R. §3.159 (c), Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 3. Contact the JSRRC, or any other appropriate sources, to verify the Veteran’s reported stressors to include: an April 1990 incident on the USS Forrester where he witnessed a fellow soldier go overboard and was lost at sea; an October 1992 incident where the USS Saratoga accidently fired missiles at a friendly ship during a war games exercise; stating that prior to arriving on the USS Saratoga the ship capsized and several people to include his friend died; while assigned to the USS Forrestal a plane crashed into the sea, a man went overboard and died, and a plane crushed a man on deck; and being assaulted by an officer. (a.) In completing the above action, the RO must discuss and attach: (1) the Veteran’s February 2014 and June 2018 statements and buddy statement; (2) the August 2014 VA examination; (3) the November 2018 testimony; and (6) any other supporting statements previously offered in a report to be forwarded to the JSRRC and any other appropriate sources. (b.) Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. After any evidence relating to the Veteran’s reported stressor or traumatic event are able to be verified or provided, obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of his claimed acquired psychiatric disorder in relation to his claimed stressors. The Veteran’s claims file should also be made available to and be reviewed by the reviewing clinician. In completing this examination, the examiner is asked to respond to the following: (a.) Identify all diagnosed psychiatric disorders. All diagnostic findings must be reconciled with conflicting evidence in the record. If a previously documented diagnosis is deemed incorrect or obsolete (i.e., subsumed by a more appropriate diagnosis), the examiner must explain why. (b.) A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. (c.) For any diagnosed psychiatric disorder, is it at least as likely as not (50 percent probability or greater) the disability had its onset during, was caused by, or is otherwise related to active service? If the examiner diagnoses PTSD, the examiner should indicate the in-service stressor underlying that diagnosis; and should provide an opinion answering the following questions: (d.) Is the claimed stressor(s) adequate to support a diagnosis of PTSD, and; (e.) Are the Veteran’s symptoms related to the claimed stressor(s)?. 5. In providing the above opinions, the examiner should also consider and address the Veteran’s February 2014 and June 2018 statements; June 2018 buddy statement; the August 2014 VA examination findings; and the November 2018 testimony. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 6. A complete rationale for all opinions expressed should be provided. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 7. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.