Citation Nr: 21008533 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 190204-2936 DATE: February 17, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for psychotic disorder (to include major depressive disorder, bipolar disorder/schizoaffective and sleep problems) (claimed as sleep problems) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that PTSD began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 17, 1995 to September 25, 1995 with the Army and June 1999 to August 2000 in the Navy. The Veteran had initiated an appeal of the claims that were initially denied in a March 2015 rating decision under the legacy review system. The Veteran then opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form in May 2018. The appeal stemming from the March 2015 rating decision was withdrawn. The claims were readjudicated by the Agency of Original Jurisdiction (AOJ), most recently in January 2019. The Veteran timely appealed the January 2019 AMA rating decision to the Board of Veterans' Appeals (Board) and requested Direct Review of the evidence considered by the AOJ at the time of the January 2019 rating decision. See February 2019 selection. In a September 2019 decision, the Board denied the claims. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court granted a Joint Motion for Remand (JMR), which vacated the Board’s decision and remanded the Veteran’s appeal to the Board for action consistent with the terms of the JMR. In the January 2019 RAMP decision, the AOJ found that new and relevant evidence was submitted to warrant readjudicating the claims for service connection for PTSD and psychosis. The Board is bound by the favorable findings. 38 C.F.R. § 3.104(c). Service Connection Entitlement to service connection for PTSD The Veteran contends that he has a PTSD diagnosis that was caused or aggravated by his active service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The record does contain some current diagnoses of PTSD. The question before the Board is whether there is credible supporting evidence that the Veteran’s claimed in-service stressor occurred. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s PTSD began during service or is otherwise related to service because there is no verified stressor. In a July 2008 memorandum, the AOJ made a formal finding on a lack of information required to verify the claimed stressors. The memorandum detailed the specific efforts made to attempt verification, including contact with the Veteran and review of the record. During December 2013 VA treatment, the Veteran stated that his PTSD symptoms were directly related to his sleeping quarters on ship. During July 2014 VA treatment, the Veteran identified his trauma history as drills, loud shooting and explosions, and a head injury from falling backward. The report of a May 2015 VA Mental Disorders DBQ relates that the Veteran stated that hitting his head on a ship and putting ships on water were major distressing events. Private treatment reports dated in December 2014, April 2015 and 2018 provide diagnoses of PTSD, but do not link the diagnoses to any stressors. A December 2003 VA treatment report provides an assessment of PTSD but does not identify a stressor. VA outpatient treatment reports dated in 2014 reflect prescription medication for depression/PTSD, but do not provide an actual diagnosis of PTSD or link PTSD to any stressors. There are no records available to confirm the stressors identified by the Veteran. Per VA’s July 2008 administrative determination, the Veteran provided a vague response to VA’s February 2008 letter requesting specific details of the incidents, including approximate dates within a two month period, resulting in the claimed issue of PTSD. Therefore, corroboration of the incidents creating the Veteran’s PTSD stressors is not possible. Without credible supporting evidence that the claimed in-service stressor occurred, service connection for PTSD is not warranted. 38 C.F.R. § 3.304(f). In summary, the Board finds that the preponderance of the evidence is against finding that the Veteran’s PTSD stressor can be confirmed; service connection for PTSD cannot be granted. Accordingly, the competent, credible and probative evidence is against finding that the Veteran is entitled to service connection for his PTSD. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. REASONS FOR REMAND Entitlement to service connection for psychotic disorder (to include major depressive disorder, bipolar disorder/schizoaffective and sleep problems) (claimed as sleep problems) is remanded. The Board is unable to make an informed decision on the issue of service connection for a psychiatric disorder, because of a pre-decisional duty to assist error. The AOJ relied on inadequate VA examinations that did not addresses whether the Veteran’s psychiatric disorder was clearly and unmistakably aggravated by service. Therefore, on remand a new examination is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate VA examiner. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. (a) Does the evidence of record clearly and unmistakably (i.e. it is undebatable) show that the Veteran had a psychological disorder disability that existed prior to his entry onto active duty for either period? (b) If the answer is yes, does the evidence of record clearly and unmistakably (i.e. it is undebatable) show that any psychological disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression (c) If the answer to either (a) or (b) is no, is it at least as likely as not (i.e., 50 percent or greater probability) that any currently diagnosed psychological disorder had its clinical onset in service or is otherwise related to service? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.