Citation Nr: 21008181 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-30 039 DATE: February 11, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Board denied this claim in a February 2019 decision, and the appellant appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Memorandum Decision, the Court vacated the Board decision. The Veteran served on active duty from February 1965 to January 1976; he died in October 1987. The appellant, who claims as the surviving spouse, testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2015. In April 2018, the Board reopened the previously denied claim and remanded the claim on the merits for development to include obtaining a VA medical opinion. This matter is remanded in accordance with the findings set forth in the Memorandum Decision. Entitlement to service connection for the Veteran’s cause of death is remanded. The Veteran’s cause of death, as detailed in the death certificate, was suicide. Appellant first filed for DIC shortly after his death, in November 1987. At the time of his death, the Veteran was not service-connected for any disability, and the claim was denied. The appellant testified in a September 2015 Board hearing that the Veteran had a diagnosis of, and should have been service connected for, PTSD. While she could not name or point to any specific stressors that may have cause PTSD, the appellant asserted that her husband had made reference to things happening while working on submarines that she did not ask about because she assumed that it was classified. She also reports being told by a military psychologist that they existed. The service treatment record showed a history of excellent performance and good health in the Navy, with notable exceptions. In October 1967 and in September 1970 the Veteran reported that he had depression, nervous trouble, frequent trouble sleeping, and nightmares. In October 1974, he reported a history of nervous trouble. However, the psychiatric examinations in October 1967 and April 1969 were normal. In addition, psychiatric evaluations in October 1974, December 1975, December 1980, December 1985 and December 1986 were normal In denying the claim, the Board found that the most probative evidence established that the Veteran did not have PTSD or any other psychiatric disorder that was due to service. It cited the July 2018 opinion from a VA psychologist that it would be impossible to diagnose PTSD without further information. This psychologist found it impossible to tell whether or not the reported symptoms were the result of PTSD without being able to conduct a thorough in-person examination. They came to the conclusion that it was not possible to determine whether or not the Veteran had a psychiatric disorder that was related to his naval service based solely on the facts contained in the record. The Board also cited to a November 2018 private psychologist opinion that it would be speculation to make any firm statement regarding the existence or etiology of PTSD. The Memorandum Decision found the VA opinion problematic in that (1) the wrong standard was used by the VA examiner in rendering the opinion and (2) the Board’s remand instructions were not followed by the examiner. It noted that the relevant inquiry, as articulated in the Board remand, is whether it was at least as likely as not that the Veteran had a psychiatric condition and whether that condition, if it existed, at least as likely as not contributed to the Veteran's death. The examiner instead addressed whether they could conclusively determine whether the Veteran had a psychiatric condition. The examiner did not substantially comply with the remand directive because the inquiry that the examiner answered was not probative on the relevant inquiry—whether it was at least as likely as not that the veteran had a psychiatric condition. The Board had asked that the examiner address whether it is “at least as likely as not” that the Veteran had an acquired psychiatric disorder that was related to his active service, and whether such disorder caused or contributed substantially or materially to the cause of the Veteran’s death. In December 2020 argument, appellant’s attorney-representative further argues that the July 2018 VA psychologist’s opinion is inadequate and requests that a new medical opinion be obtained if we find insufficient evidence to grant the claim at this juncture. We find that the July 2018 VA opinion is inadequate consistent with the Memorandum Decision. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate medical professional based on a review of the claims file as to whether it is “at least as likely as not” that the Veteran had an acquired psychiatric disorder that was related to his active service, and whether such disorder at least as likely as not caused or contributed substantially or materially to the cause of the Veteran’s death. The medical professional is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The medical professional should provide a complete explanation for any opinion provided. 2. Then, readjudicate the appellant’s claim. If the claim remains denied, the appellant should be provided a Supplemental Statement of the Case (SSOC). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.