Citation Nr: 21012445 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-30 534 DATE: March 4, 2021 REMANDED Entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, served on active duty from April 1968 to January 1971. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In an October 2018 decision, the Board denied an evaluation in excess of 50 percent for PTSD. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 memorandum decision, the Court vacated the Board decision and remanded the matter for further proceeding consistent with the Court decision. In its April 2020 decision, the Court found that the Board did not follow the proper procedure for assigning a disability rating to a mental health disorder. The Court indicated that the Board conflated the two distinct prongs of this analysis. The Board also decided this case by giving its general impression of the appellant's disability rather than following the fair, objective, and rigorous process set forth by this Court. It observed that the Court in Mauerhan made clear that the Board was not to assign a disability rating for a mental health disorder by ticking through the symptoms affixed to the rating criteria and tabulating the ones the appellant has and has not experienced. 16 Vet. App. at 442. It stated that the Board did just that in the decision presently on appeal. The Court further found that the Board enhanced evidence to support the conclusion that it wished to reach. The Court also observed that two medical experts disagreed about whether the appellant's symptoms produced occupational and social impairment sufficient to warrant increased compensation. It noted that the Board favored the 2016 VA medical examiner's opinion. It found the Board’s explanation for doing so to be brief and incomplete. It did not conduct a full and explicit adequacy review of either document and it focused on the shortcomings it perceived in Dr. L's opinion, without giving the 2016 examiner's opinion any scrutiny at all. The Court noted that on remand, should the Board again need to weigh competing medical opinions, it should determine whether they were adequate and then, if they were, fully explain the probative value it awarded to each without enhancing evidence beyond what the record would bear. The Court further indicated that the Board's implied conclusion that the 2016 VA examiner's opinion with addendum was adequate was clearly erroneous. The Court noted that the Agency sent the examiner's initial report back to him because he gave neither a diagnosis nor an opinion about the Veteran’s occupational and social impairment. In response, the examiner wrote "PTSD" and "occupational and social impairment with reduced reliability and productivity." He gave no explanation connecting those statements to data that he recorded in his reports. He also did not "comment on" Dr. L's opinion as he was asked to do. The Court found that his opinion was clearly inadequate. Given the above, as well as the passage of time from the most recent VA examination, the most recent treatment records associated with the file dating back to 2016, and a recently received statement from the Veteran showing a possible worsening of symptoms, additional development is warranted. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. The Veteran should be afforded a VA psychiatric examination to determine the severity of his PTSD. All appropriate tests and studies, including psychological testing, should be performed and all findings should be reported in detail. The entire record must be made available to the examiner and the examiner should note such review in the report. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.