Citation Nr: 21014972 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-25 898 DATE: March 16, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1966 to September 1970. This matter comes before the Board on appeal from a June 2011 Regional Office (RO) rating decision. This claim was previously denied by the Board in an August 2018 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, this issue was vacated and remanded by the Court in a Memorandum Decision. The case has now been returned to the Board. 1. Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder and PTSD, is remanded. The June 2020 Memorandum Decision cited deficiencies with the August 2018 Board decision, as well as with the VA examination reports on which the Board decision was based. The Board will address these deficiencies herein and will remand this claim for a new examination and opinion. The Veteran contends that he has a current psychiatric disability due to his experiences in Vietnam during service. The June 2020 Memorandum Decision found that the Board decision and the June 2011 and September 2017 VA examination reports were unclear as to whether the Veteran’s Vietnam experiences were considered to be verified stressors for purposes of establishing service connection for PTSD. In general, if the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service. 38 C.F.R. § 3.304(f). In the case at hand, the Veteran’s service personnel records do not contain evidence, including awards or decorations, sufficient to establish that he engaged in combat with the enemy as defined by the relevant regulations. For a veteran who is not determined to have “engaged in combat with the enemy,” if the claimed stressor is related to a veteran’s fear of hostile military or terrorist activity, in the absence of clear and convincing evidence to the contrary, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service. In such cases, service connection may be granted if (1) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD; and (2) the veteran’s symptoms have been medically related to the claimed stressor. See 38 C.F.R. § 3.304(f)(3). Such determinations must be made by mental health professionals who are qualified to perform initial Compensation and Pension (C&P) examinations. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843, 39846-47 (July 13, 2010). In the case at hand, the Veteran’s service personnel records reflect that he served in Vietnam from October 1968 through September 1969. His reported stressors involve this service, and his reported stressors are therefore deemed to be established. The Board remand will therefore direct the VA examiner to consider the Veteran’s described Vietnam experiences as verified stressors. Another deficiency that was cited by the Memorandum Decision was that the September 2017 VA examiner found that the Veteran did not satisfy PTSD Criterion A, but the examiner did not explain why the Veteran’s traumatic Vietnam-related stressors did not satisfy Criterion A. This deficiency should be corrected in the new examination given that the Board has clearly stated that the Veteran’s Vietnam stressors are considered to be verified. Another deficiency that was cited by the Memorandum Decision was a lack of clarity over whether the June 2011 and September 2017 VA examiners had reviewed the record. On remand, the Board will direct that the VA examiner review the record and specifically note the completion of this review in the resulting examination report. Another deficiency that was cited by the Memorandum Decision was that neither the Board nor the September 2017 VA examiner discussed potentially favorable evidence, including indications of avoidance, hypervigilance, concentration problems, sleep disturbance, upsetting memories with occasional distress, having trouble remembering parts of the stressful experience, emotional numbness, a sense of foreshortened future, restricted affect, and occasional reexperiencing. On remand, this evidence must be discussed by the VA examiner. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained. 2. Arrange for the Veteran to undergo an examination to determine the nature and etiology of any current acquired psychiatric disability. The claims folders must be reviewed by the examiner in connection with the examination, and review of the record should be noted in the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. After reviewing the record and examining the Veteran, the examiner should diagnose all current acquired psychiatric disabilities, specifically diagnosing or ruling out PTSD and anxiety disorder. The examiner should specifically discuss the diagnostic criteria in relation to the Veteran’s psychiatric symptoms. The Veteran’s experiences in Vietnam are to be considered verified based on his lay testimony. For any such disability that is diagnosed, the examiner should express an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any such disability is as a result of his military service. The examiner should expressly discuss the indications in the record of avoidance, hypervigilance, concentration problems, sleep disturbance, upsetting memories with occasional distress, having trouble remembering parts of the stressful experience, emotional numbness, a sense of foreshortened future, restricted affect, and occasional reexperiencing. Any opinion expressed by the VA examiner should be accompanied by a complete rationale that includes a discussion of the facts of the Veteran’s case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.