Citation Nr: 21021791 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-48 886 DATE: April 14, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder with depressed mood, generalized anxiety disorder, and major depressive disorder is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from October 2012 to September 2013. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issue of entitlement to service connection for PTSD has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, adjustment disorder with depressed mood, generalized anxiety disorder, and major depressive disorder, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that his acquired psychiatric disorder is the result of military service, including incidents of personal assault by other service members. The Board notes that this matter was remanded for additional development in May 2020. The Board found that the Veteran was not sent the required VCAA notice letter as required for PTSD claims based on in-service personal assault. In addition, the Board directed the Agency of Original Jurisdiction (AOJ) to attempt to verify the Veteran’s reported in-service stressors based on personal assault, as there was no evidence in the claims file showing any attempt to verify the reported in-service stressor. Finally, the Board noted that a new VA examination was required in light of the conflicting evidence of record regarding a current diagnosis of PTSD. A review of the claims file reveals that while proper VCAA notice was sent to the Veteran, there was no attempt by the AOJ to verify the Veteran’s reported in-service stressors. The Board notes that the Veteran submitted information in July 2020 describing how he was assaulted by his drill sergeant at Fort Benning, Georgia in October 2012 while assigned to Delta Company, ISO Infantry Regiment and how he was assaulted by fellow platoon members at Fort Campbell, Kentucky in March 2013 while assigned to the 101st Airborne Division. Here, the Board finds that the Veteran has supplied sufficient information to attempt to verify his claimed stressors of personal assault. However, there is no evidence in the claims file that the AOJ attempted to verify these incidents. As such, this matter must remanded to attempt to allow VA to attempt to corroborate the Veteran’s reported personal assault stressors. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on a review of the evidence of record, the Board finds that there has not been substantial compliance with the previous remand directives. Accordingly, the Board must remand this matter for the AOJ to attempt to verify the in-service personal assaults, as well as secure a new VA examination after development of the reported stressors. The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. The RO is to attempt to corroborate the Veteran's in-service stressors based on personal assault, including the following: (1) being assaulted by his drill sergeant at Fort Benning, Georgia in October 2012 while assigned to Delta Company, ISO Infantry Regiment, and (2) being assaulted by fellow platoon members at Fort Campbell, Kentucky in March 2013 while assigned to the 101st Airborne Division. If more details are needed, contact the Veteran to request the information. 3. If a reported stressor or stressors is/are verified, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with a qualified medical professional to determine the nature and the etiology of any acquired psychiatric disorder that is present. The examiner should review the claims file and make a notation that the claims file was reviewed. Based on the examination result, and a review of the evidence of record, the examiner must address the following: (a.) Is it at least as likely as not that the Veteran has a mental disorder linked to active duty based on the stressor or stressors verified by VA? Provide the examiner with the list of verified stressors and inform him that the etiology opinion must be based on these stressors. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page)   A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.