Citation Nr: 21012745 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-60 945 DATE: March 5, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to October 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of background, this case was initially before the Board in March 2019, at which time entitlement to service connection for tinnitus was granted, entitlement to service connection for an acquired psychiatric disorder other than PTSD was remanded and entitlement to service connection for PTSD was denied. The Veteran appealed the Board’s March 2019 denial as to entitlement to service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in February 2020, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board’s decision with respect to this issue, and remanded the case to the Board for re-adjudication consistent with the JMPR. The claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD is still under development by the RO and therefore, will not be further discussed in this decision. In June 2017, the Board remanded the Veteran’s claim for PTSD to obtain all relevant records from Drs. Pierce, Messina, Collet, and/or Davis as referenced in the February 2020 JMPR. In addition, the Board remanded to afford the Veteran an adequate VA examination for PTSD because the January 2016 examiner failed to explain why the Veteran’s symptoms were not responsive to Criterion D of a PTSD diagnosis. As will be discussed below, the resulting opinion was not responsive to the Board's directive and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that he suffers from PTSD specifically as a direct result of his military service, to include service during operation Desert Shield. His military service records indicate that his MOS was aviation ordnance man in the United States Navy during the first Gulf War. As a part of his service, he was awarded the Southwest Asia Service Medal with one Bronze Star. A diagnosis of PTSD must be in conformance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. § 4.125; see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). Aside from a diagnosis, establishing service connection for PTSD also requires credible supporting evidence that the claimed in-service stressor occurred, and medical evidence of a causal nexus between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). An exception to the second requirement exists in certain limited situations. Specifically, if the evidence establishes that the Veteran engaged in combat and the claimed stressor is related to that combat, or the claimed stressor is related to the Veteran’s fear of hostile military or terrorist activity, the Veteran’s lay statements alone may establish the occurrence of the claimed stressor, provided there is no clear and convincing evidence to the contrary and the claimed stressor is consistent with the places, types, and circumstances of his or her service. 38 C.F.R. § 3.304(f)(2)-(3). The Veteran was afforded a VA examination for PTSD in December 2020. The examiner did not diagnosis the Veteran with PTSD but rather confirmed the diagnoses of major depressive disorder and generalized anxiety disorder. The examiner explained “no identifiable stressor was reported or identified that meets the definition of a Criterion A stressor as per DSM-5 standards”. As such, the examiner did not address any other criterion for PTSD under the DSM-5. In providing his opinion, the examiner noted reports of the Veteran witnessing officers “turning in their wings” and sailors “jumping off the side of the boat” as well as facing dangers while being on the flight line and witnessing a burial at sea. However, the examiner noted that these reports were of sailors he did not know personally, were normal hazards of duty and were therefore not sufficient to warrant being defined as “trauma” under the DSM-5 criteria. However, the Board finds this examination and subsequent medical opinion were inadequate for adjudicative purposes and an additional addendum opinion is thus warranted. The Veteran was afforded an earlier VA PTSD examination in January 2016. At this time, the Veteran reported “our sister squadron lost an aircraft at sea due to [a] combat mission…it was difficult, we were stationed on the same naval station and I knew the ones in that aircraft”. The Veteran further reported the onset of symptoms in service to include angry outbursts, anxiety and nightmares. The January 2016 examination was deemed inadequate by the JMPR for failure to discuss Criterion D of the DSM-5. Nonetheless, the January 2016 examiner did find the Veteran’s stressors adequate under Criterion A for DSM-5 and considered the onset of symptoms in service. While the December 2020 examiner generally noted the experiences of the Veteran including sailors jumping ship and officers turning in their wings, there was no specific mention of the Veteran’s report of known comrades in arms shot down during combat. Furthermore, the examiner did not note or discuss the reported onset of symptoms during service to include nightmares, anxiety and outbursts. Thus, it appears the December 2020 examiner failed to consider all significant lay statements of the Veteran nor is it clear that the examiner thoroughly reviewed the record. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn’t find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). Thus, another addendum opinion is warranted. The Board notes, in its June 2020 remand directives, the December 2020 examination was to be scheduled after the Veteran’s reported stressors have been developed as directed by the earlier March 2019 Board remand. Currently, this development has not been completed as ordered or, to the extent is has, such steps have not been documented in the claims file. The Board requested stressor development to be conducted and in the event the search for corroborating information lead to negative results, the RO was to notify the Veteran and his representative. As of the date of this decision, no notice has been sent and it is not clear if the development has been completed. Therefore, the Board stresses the need to complete the development of the Veteran’s claimed stressors before scheduling the Veteran for a new VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records from October 2020 to the present. 2. Efforts must be completed to attempt to verify the Veteran’s reported stressors, including taking part in a burial at sea or witnessing a sailor jump from the deck of a ship, both occurring in or around August 1990 while the Veteran was assigned to VAQ-139. The RO should contact the National Personnel Records Center (NPRC), the JSRRC, NARA, or any other agency deemed appropriate. Any additional action necessary for independent verification of the alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the AOJ should notify the Veteran, explain the efforts taken to obtain this information, and describe any further action to be taken. All efforts to verify the Veteran’s reported stressors must be documented in the claims file and if it is determined that further efforts would be futile, a memorandum outlining all steps taken and conclusions reached should be drafted and associated with the claims file. 3. After steps 1 and 2 are completed, schedule the Veteran for a psychiatric examination to determine whether the Veteran has posttraumatic stress disorder (PTSD) in accordance with the DSM-5. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to his in-service stressors, a downed aircraft as the result of combat containing known service members, witnessing a burial at sea, sailors “jumping ship” and officers “turning in their wings”. To the extent other DSM-5 diagnoses are rendered, it would be of considerable assistance to the Board for the examiner to further opine whether any found diagnosis is “at least as likely as not” related to any incident of service. The claims folder must be made available to the examiner for review in connection with the examination. The examination report should reflect that the claims file was reviewed, including any newly associated medical records. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, 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.