Citation Nr: 21022569 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-00 387A DATE: April 16, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), anxiety, and depression is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Navy from November 1974 to November 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in September 2015; a transcript of that hearing is of record. The Veteran’s psychiatric claim was subsequently denied in an August 2018 Board decision, which the Veteran appealed to the Court of Appeals for Veterans Claims (the Court). In August 2019, the Court granted a Joint Motion for Partial Remand and vacated the August 2018 Board decision pertaining to the Veteran’s psychiatric service connection claim and remanded such claim for further development, including the procurement of federal records pertaining to the Veteran’s claimed in-service stressors and an additional VA psychiatric examination. The Board subsequently remanded the claim in February 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). See 38 U.S.C. § 7107(a)(2). Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), anxiety, and depression is remanded. The Veteran contends that his current acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), anxiety, and depression, is causally related to his active military service aboard the USS Ponce. The Court remanded the case in August 2019 because the Board failed to satisfy its duty to assist in requesting information from the Joint Services Records Research Center (JSRRC) to verify the Veteran’s claimed stressors. In the February 2020 remand order, the Board included instructions to verify two of the Veteran’s stressors and to correct errors in the June 2018 VA examination, by directing opinions regarding whether the Veteran’s current diagnoses of anxiety and depression are causally related to his military service. VA sent a request asking for verification of two of the Veteran’s claimed stressors In February 2020. The Veterans Benefits Administration, Compensation Service, Records Research Center, completed comprehensive research and determined one of the Veteran’s stressor incidents (suicide of a friend/ fellow seaman) is unverified between the dates of June 1, 1975 and July 31, 1975. Research into the Veteran's stressor during Operation Fluid Drive mission to the coast of Lebanon to evacuate soldiers was listed as still pending in the claims file in November 2020. There is no indication in the claims file that a request was sent requesting verification of the Veteran’s third claimed stressor, attempts to save fellow shipmates from drowning. The February 2020 remand orders resulted in the January 2021 VA examination with the following report determinations: The examiner said the Veteran’s previous diagnoses of PTSD, depression and anxiety were conferred in a clinical context where different diagnostic guidelines apply, appears to have been based predominantly on his subjectively reported symptoms, and carry-over from previous providers (which is common in clinical settings). None of these stated psychologists (i.e., treatment providers) appeared to have administered a structured interview (e.g., CAPS/CAPS-5); administered any objective testing (e.g., MMPI-2); reviewed the Veteran's claims file; followed the American Academy of Psychiatry and Law's "Practice Guideline for the Forensic Evaluation of Psychiatric Disability"; followed the American Psychological Association’s “Specialty Guidelines for Forensic Psychology,” and followed the VA's "Best Practice Manual for Posttraumatic Stress Disorder (PTSD) Compensation and Pension Examinations" in reaching their diagnostic conclusions. A specified stressor event meeting Criterion A should be identified in order to administer the CAPS-5. According to the January 2021 examiner, the Veteran’s description of each of his claimed stressors are not consistent with Criterion A for a PTSD diagnosis. Therefore, due to the absence of a Criterion A stressor, the CAPS-5 was not administered and subsequently a current PTSD diagnosis is ruled out. Given there was no diagnosis assigned, the examiner determined no medical opinion was warranted, and none was provided. The examiner did not explain why none of the Veteran’s three claimed stressors failed to meet Criterion A. Furthermore, the examiner failed to answer questions posed in its February 2020 remand order, namely whether the Veteran’s anxiety and depression were caused by his service or otherwise related to service. The Board recognizes that forensic examiners may decide differently than clinical service providers as to whether the Veteran has anxiety and depression diagnoses using their DSM-5 criteria and other standards. However, the examiner did not comment on the fact that one of the providers specifically indicated the diagnoses were based on the criteria from DSM-IV until the time of transition to DSM-V. Although the Board regrets the additional delay, a remand is required in this case to ensure that there is a complete record upon which to decide the issue of entitlement to service connection for an acquired psychiatric disability, so that the Veteran is afforded every possible consideration. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s two remaining asserted stressors for which no final decision was made while serving aboard the USS Ponce from November 1974 through November 1978 and participating in Operation Fluid Drive. Specifically, verification should be requested regarding rescue attempts of overboard service members off the USS Ponce. If necessary, multiple 60-day record searches should be conducted to cover the entire period. Secondly verification should be requested regarding the threat conditions and the experiences of service members serving on the USS Ponce during Operation Fluid Drive. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify the Veteran’s claimed in-service stressors, then issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the claimed in-service stressors. 2. Obtain any other relevant outstanding private or VA treatment records relating to the Veteran’s claims, including any other relevant VA or private treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and to associate with the claims file any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA psychiatric examination with an appropriate clinician to determine the nature and etiology of the Veteran’s claimed acquired psychiatric disability. The entire claims folder should be made available and reviewed by the examiner including this remand order. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: a) Identify all psychiatric disorders diagnosed post-service, including but not limited to PTSD, anxiety, and depression, and explain whether any of these diagnosed conditions are diagnoses under DSM-5 criteria, and if not why? If Criterion A is not met the examiner must explain why not? The examiner must discuss the treatment records that indicate diagnoses of PTSD, anxiety and depression were based on the criteria from DSM-IV until time of transition to DSM-5. b) Consider the Veteran’s active military service, to include the following in-service stressors identified by the Veteran: 1) The Veteran’s fear of hostile military or terrorist activity during the USS Ponce’s deployment to the shore of Lebanon in 1977; 2) the Veteran’s observance of the suicide of his friend and fellow shipmate on the USS Ponce; and 3) the Veteran’s rescue of victims who had fallen overboard on the USS Ponce. c) For each acquired psychiatric disorder identified, render an opinion regarding whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s acquired psychiatric disability is due to or otherwise causally or etiologically related to his military service. d) Even if no psychiatric disability is currently diagnosed, the examiner must provide an opinion as to whether the prior diagnoses of PTSD, depression and anxiety under the DSM-IV noted in the treatment records are due to or otherwise causally or etiologically related to military service. Each opinion should be accompanied by a complete rationale explaining how the examiner came to his conclusion, based on which facts of record and what medical knowledge, DSM-5 criteria, or regulations were applied and how they led to the examiner’s opinion. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.