Citation Nr: 21014132 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 07-18 488 DATE: March 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to November 1972. The Veteran passed away in January 2013. In July 2014, his spouse was accepted as his substitute. See 38 U.S.C.§5121A (2012); Breedlove v. Shinseki, 24 Vet. App. 7 (2010). The Veteran presented testimony during two hearings before two different Veterans Law Judges (VLJs) of the Board. The Veteran testified at a Board hearing in June 2009 at the RO and in January 2012 via videoconference before the undersigned VLJ of the Board. Transcripts of both hearings are of record. In May 2012, the Veteran declined an additional hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board notes that this claim was previously denied by the Board in September 2009, in May 2015, in October 2017, and most recently, in April 2019. Those decisions were appealed to the United States Court of Appeals for Veterans Claims (Court) by the Veteran and appellant. Thereafter, the Court granted the Joint Motions for Remand and issued Orders vacating those Board decisions. As the Board has discussed the facts of the case, facts which have not changed since the last Board decision, much of this decision consists of portions of decisions past. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. During the appeal, the Veteran asserted that he had PTSD, which was etiologically linked to his time in service. Specifically, he asserted that while he was stationed at Da Nang Air Base in the Republic of Vietnam, he was constantly under rocket and mortar attacks. During the course of the appeal the Veteran has additionally alleged witnessing deaths of men by airplane propellers, and that while refueling a helicopter, a rocket had landed about 6 feet away from him, but had not exploded. He also described seeing a sailor fall overboard without his ship stopping, and that he was required to place bodies of fallen soldiers into transport bags. The Veteran also stated that he lost a friend in a foxhole next to him in Da Nang in 1969 and recalled shooting a seven-year-old in the head who was carrying a gun. The appellant now advances the Veteran’s arguments. The medical evidence of record is conflicting regarding whether the Veteran has a current diagnosis of PTSD or another psychiatric disorder, and if so, whether any currently diagnosed acquired psychiatric disorder is etiologically related to his active military service, including his reported stressful incidents in Vietnam. In this regard, in April 2006, a letter regarding the Veteran's psychiatric symptoms was submitted by his private treating physician. After conducting a mental status examination, the private physician, Dr. W.R., provided a diagnostic impression of "posttraumatic stress disorder, chronic, severe, with psychotic features (persistent paranoid ideation)." Dr. W.R. noted that the Veteran slept with guns and knives in his bed and that he could not trust anyone. He noted that the Veteran had increasing anxiety and irritability with a very short fuse and that he had several arrests for assault and battery and belonged to a motorcycle gang for several years and that he had daytime flashbacks of his war experiences precipitated by various sites and sounds. The Veteran explained that he was “heavy in the drug scene in Vietnam but has been drug-free now for approximately seven years.” Dr. W.R. stated: “all of his symptoms are related to his service in Vietnam.” A January 2007 statement submitted by the Veteran's rehabilitation group facilitator, R.T. reflects the social worker's belief that the Veteran met the diagnostic criteria for PTSD. R.T. noted “he has definite symptoms of Posttraumatic Stress Disorder.” R.T. stated “my belief is he meets the diagnostic criteria for 309.81 Post Traumatic Stress Disorder, acute. I also believe this was caused by his service in Viet Nam.” On VA psychiatric examination in July 2011 the claims folder was reviewed. The examiner concluded that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria, but had a diagnosis of a mood disorder due to chronic back pain. The examiner pointed out that the Veteran's score on psychological testing was consistent with a diagnosis of PTSD, but his answers were not congruent with the VA psychiatric records. A VA examiner was asked to review the Veteran's claim file, including his statements and medical history, and to comment on whether the Veteran indeed had PTSD or any other psychiatric disability, and, if so, if it was as a result of his active service. Resultantly, in October 2014, a VA examiner submitted a medical opinion regarding the Veteran's claim. The October 2014 examination report reflects the VA clinical psychologist's opinion that the Veteran did not have PTSD, and instead suffered from another psychiatric disorder with PTSD traits. The 2014 examiner stated at the outset his agreement with the July 2011 VA examiner's conclusions and diagnoses. In January 2017, a private medical opinion was submitted by the appellant's representative. Dr. J.M.’s report clearly demonstrates a thorough review of the record, as it consists largely of quotations from the Veteran’s statements and testimony, lay statements in support of his claim, and the findings of other medical experts. Approximately a page and a half of the report note the results of an interview with the appellant. Based on a telephone interview with the widow and a review of the record, the psychologist opined that the Veteran did have PTSD, which was at least as likely as not directly related to in-service stressors. He noted that the Veteran would satisfy the diagnostic criteria for PTSD under DSM-IV if used. The psychologist also remarked that he believed the Veteran also had a personality disorder, that he used drugs and alcohol to dampen PTSD-related symptoms, and that the Veteran had depressive disorder related to his back pain and colon cancer. In compliance with the Board's March 2017 remand, a VA medical opinion was obtained in May 2017. The examiner, a VA clinical psychologist, reviewed the conflicting medical evidence of record and opined that it was less likely that the Veteran had a diagnosis of PTSD and that it was also less likely that the Veteran's acquired psychiatric disorder (other than PTSD) had its clinical onset during service. The examiner expressed his belief Dr. J.M. did not adequately address the Veteran’s symptoms as due to service, as opposed to as due to his post-service experiences. The examiner also noted that the majority of doctors at the VA did not find a military-related diagnosis of PTSD and stated his agreement with the opinions rendered by VA psychologists in 2011 and 2014. Most recently, in January 2021, private psychologist, R.W. opined that the Veteran had a diagnosis of PTSD, which developed due to his military service-related stressor of his fear of hostile military activity, specifically constant mortar attacks. Dr. R.W. noted and discussed evidence from the record he reviewed when forming his opinion, including medical evaluations and examination, statements from the Veteran, and lay statements from family and acquaintances of the Veteran. He also discussed contradictory medical opinions of record and explained why he disagreed with the findings. In this regard, he noted that he disagreed with the findings of other medical examiners that the Veteran’s colon cancer was the cause of his PTSD, pointing out that he consistently reported symptoms of PTSD prior to his diagnosis of colon cancer. He also noted that he disagreed with the finding that the Veteran’s history of gang activity was the cause of his PTSD, as several buddy statements show that the Veteran was able to discuss his former gang activity, but was not able to discuss his military service. Due to the conflicting nature of the medical evidence described above, the Board finds that a remand for an additional opinion is warranted. By this remand, the Board makes no determination, express or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, send the Veteran’s claims file to a VA psychologist or physician who has not reviewed the claims file before, to determine the nature and etiology of any currently diagnosed acquired psychiatric disability, including PTSD. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Based upon a review of the relevant evidence and history provided by the appellant, the examiner should identify all current acquired psychiatric diagnoses, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current acquired psychiatric disability, including PTSD, originated while the Veteran was serving on active duty or is otherwise related to a disease or injury in service. If PTSD is diagnosed (under DSM-IV criteria), then identify the specific stressor(s) upon which the diagnosis is based. The examiner must take into account all the medical opinions of record, to specifically include Dr. Mangold’s January 2017 opinion, and if needed, reconcile his or her opinion with any conflicting medical opinions of record. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner 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. 3. After completion of the above and any other development deemed necessary, review the expanded record, and readjudicate the issue on appeal. If the claim remains denied, the appellant and her representative should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.