Citation Nr: 21012746 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-00 229 DATE: March 5, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran does not have a current diagnosis of PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1970 to August 1973, with subsequent service in the Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran testified before a Decision Review Officer (DRO). In October 2014, the Veteran testified before the undersigned Veterans Law Judge. In January 2015, the Board remanded the appeal for additional development. In July 2019, the Board, in pertinent part, granted service connection for depression but denied the claim of entitlement to service connection for PTSD for lack of a current diagnosis. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the July 2019 Board decision insofar as it denied service connection for PTSD and remanded this matter to the Board for compliance with the JMPR instructions. The Parties to the JMPR agreed that in denying service connection for PTSD the Board erred by providing an inadequate statement of reasons or bases. Specifically, the Parties agreed that the Board failed to explain why the January 2009 VA medical opinion of record was inadequate in January 2015 when it remanded the Veteran’s claim for an examination, but adequate and sufficient in July 2019 when it later denied the Veteran’s claim. As such, the Parties requested an explanation from the Board as to why it found the January 2009 VA examination to be “highly probative evidence” when it issued its July 2019 decision despite “clearly” finding it inadequate in the January 2015 remand. As the Court noted no other deficiencies in the record as to the claim, and for the sake of judicial economy, the Board hereby incorporates all other facts and analysis of the vacated July 2019 Board decision by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). The Board emphasizes that the January 2015 remand makes no mention of the January 2009 VA examination report, which brings into question the Parties’ statement that the Board “clearly” found that report to be inadequate. Moreover, the January 2015 remand cites to statutes, regulations and caselaw addressing when the duty to obtain a VA examination is triggered, specifically 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Unfortunately, this is because the Board was unaware of the relevant January 2009 VA examination report of record at the time of remand’s issuance. Had the Board been aware of the January 2009 report at the time, which it clearly was not, it would have first explained why that examination was inadequate in requesting an additional examination pursuant to the duty to assist, as it did with the Veteran’s knee and back disorders in the preceding paragraphs of the remand order. The Board’s error in this regard is unfortunate; however, it was of no detriment to the Veteran, as he was only afforded an additional opportunity to substantiate his claim. Moreover, this error does not require that the Board vacate or reconsider its prior remand, as such a process is only applicable to final decisions. 38 C.F.R. §§ 20.1000, 1001 (discussing vacatur and reconsideration of decisions). In this regard, a Board remand is in the nature of a preliminary order and does not constitute a final decision of the Board. 38 C.F.R. §§ 20.1100(b), 20.1303; see also Mathews v. McDonald, 28. Vet. App. 309, 316 (2016)(the Board’s findings in a previous non-final remand order are insulated from judicial review because Board remand orders are not appealable to the Court). Instead, the Board hereby offers the additional reasons and bases the Court has requested on this issue, namely that the Board missed the January 2009 examination report on its first review of this case, which prompted the unnecessary request for a remand pursuant to the duty to assist. Furthermore, the Board emphasizes that the April 2016 VA examiner confirmed the prior January 2009 VA examiner’s finding that the Veteran did not have a current diagnosis of PTSD. Unfortunately, the 2016 VA examiner employed the DSM-5, which is not applicable to this case, as it was first certified to the Board in June 2014. See June 2014 VA Form 8; see also 80 Fed. Reg. 14,308 (March 19, 2015) (DSM-5 does not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded). However, the Board need not remand for an additional examination, given the probative January 2009 VA examination report employing the DSM-IV. In other words, there was already “substantial compliance” with the January 2015 remand at the time of its issuance, as the obligation to obtain a VA psychiatric examination employing the DSM-IV was already satisfied. The Board regrets its initial error in remanding this claim in January 2015, as it was based purely on an oversight that no VA examination had been conducted at that time. However, the Board sees no reason to further waste judicial resources via a remand for DSM-IV-compliant examination when there is already one of record. Finally, the Board emphasizes that the Veteran is already service-connected for a psychiatric disorder, and fully admits that he has not been diagnosed with PTSD, which only further supports the Board’s decision not to additionally remand this case. See September 2011 Decision Review Officer Hearing Transcript at 16 (when asked if he’s being treated for PTSD, Veteran responds “No.”); October 2014 Board Hearing Transcript at 37 (when asked if he has a diagnosis of PTSD, Veteran responds “No, I haven’t, but I know that.”). Thus, for reasons and bases outlined above, the benefit sought on appeal remains denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.