Citation Nr: 21008337 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-13 667 DATE: February 16, 2021 REMANDED The issue of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to November 1967. This matter is currently before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter originally came to the Board on appeal from a December 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2018, the Board issued a decision that denied service connection for a psychiatric disorder, including PTSD, in addition to addressing a number of other service connection claims on appeal at that time. The Veteran appealed portions of this Board decision to the Court. In July 2020, the Court issued a Memorandum Decision that vacated (set aside) the July 2018 Board decision only to the extent of the Board’s denial of the “PTSD claim,” and the Court remanded that specific matter for readjudication consistent with the instructions outlined in the Memorandum Decision. (The Court otherwise found that: “Appellant fails to show the Board erred in denying service connection for a stomach disorder, headaches, and cerebral aneurysm. So we will affirm those parts of the Board’s decision.” No other aspect of the July 2018 Board decision was appealed to the Court. Thus, only the psychiatric disorder / PTSD issue has been returned to the Board at this time.) The Board notes that the July 2018 Board decision acknowledged the existence of a pair of other perfected appeals, and the Board explained that those appeals were pending but not included within the Board’s jurisdiction at that time. The claims-file now shows that the Veteran withdrew those other appeals as part of his “RAMP Opt-In Election” in July 2018, and accordingly those matters are not before the Board at this time. 1. The issue of entitlement to service connection for a psychiatric disorder, to include PTSD, is remanded. The July 2020 Memorandum Decision explains the Court’s finding that: the Board gave inadequate reasons for relying on the May 2012 and August 2016 VA examinations. Those examinations found that appellant does not have PTSD. The Board relied on those findings to deny service connection for PTSD. But neither VA examination addressed appellant’s October 2011 and April 2013 statements about PTSD symptoms. In those statements, appellant describes symptoms he’s experienced since service. The Court clearly concludes that “The May 2012 and August 2016 VA examiners failed to address those statements. Although examiners have no duty to discuss every piece of relevant evidence, the Board must do so.” Review of the May 2012 and August 2016 VA examination reports confirms the Court’s concern that these reports do not address the Veteran’s October 2011 and April 2013 statements describing potentially pertinent symptoms in this case. The Board has considered whether the conclusions presented by the VA examiners may nevertheless be adequate to inform appellate review, but the VA examination reports do not otherwise contemplate the Veteran’s reports of the pertinent symptomatology; in other words, the reports do not merely fail to discuss the specific October 2011 and April 2013 statements in particular, but they also fail to otherwise acknowledge the significant mental health symptomatology that the Veteran described in those statements. The Board is unable to rely upon the VA examination reports to establish the diagnostic conclusions they present in this case, and a fully informed appellate review of the issue requires an adequate new VA examination report / medical opinion addressing the matter. Accordingly, the Board shall now remand this issue for additional development of the evidentiary record featuring a new and more adequate VA examination report / medical opinion addressing the Veteran’s lay testimony regarding potentially pertinent symptomatology that may support a diagnosis of a mental health disorder such as PTSD. To remedy the problem identified by the Court’s July 2020 Memorandum Decision, the new VA examination report / medical opinion must address the Veteran’s reports of symptoms presented in his October 2011 and April 2013 written statements, and his other statements of record (such as his recent presentation of his testimony in a September 2020 written statement). See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (holding that the duty to assist requires that an examiner address the veteran’s lay statements to provide the Board with an adequate medical opinion ). The Board has included some examples of the Veteran’s pertinent reported symptomatology details in the directives, below. The Board makes no credibility findings at this time. The matter is REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any pertinent private treatment records. 2. After the record is determined to be complete, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any acquired psychiatric disorder. After interview and, if feasible, examination of the Veteran and review of his claims file, the examiner should respond to the following: a) Please identify by diagnosis all acquired psychiatric disorders current during the period on appeal, including PTSD. b) If the clinician concludes that the Veteran has no acquired psychiatric disorder during the period on appeal, (i) the clinician must provide a rationale reconciling the conclusion with the October 2015 opinion presented by a private mental health provider that diagnoses the Veteran with PTSD; and (ii) the clinician must address the Veteran’s reports of symptoms presented in his lay statements of record, including in particular his statements dated in October 2011, April 2013, and September 2020. The Veteran’s reported symptoms include: *nightmares and flashbacks of the war and faces of dead soldiers, night sweats, *“any sound around the house keeps me in alert mode,” *“I am constantly jumping due [to] the noises around me,” *“I am very nervous around people,” *“I constantly feel frightened, sad, anxious, and disconnected from the world and [es]specially my family,” *“continuous feeling of be[ing] in danger,” *“walk around feeling numb and upset all the time,” *“uncontrollable outbursts of irritability or mood changes,” *“depression,” *“Dysphoria plus Anhedonia,” *“uncontrollable psychomotor agitation,” and *“chronic anxiety,” c) If any psychiatric disorder is identified, is it at least as likely as not (a 50 percent or greater probability) related to service? d) If PTSD is identified, are any of the Veteran’s claimed stressors related to fear of hostile military or terrorist activity? Please explain. In rendering the opinion, the clinician is requested to opine as to whether there is any medical reason to accept or reject the proposition that the Veteran’s claimed in-service combat stressors have led to an acquired psychiatric disorder. If the sole basis of a negative nexus opinion is the absence of evidence of treatment in the Veteran’s service medical records, the clinician must explain whether an acquired psychiatric disorder would have manifested observable symptoms in service which would have been reported and recorded in service treatment records. The clinician is advised that the Board has not as yet made any credibility determinations with respect to the Veteran’s reports of symptomatology. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.