Citation Nr: 21025055 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-44 637 DATE: April 27, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1974 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This case was remanded to the AOJ most recently in April 2020 for additional development. Unfortunately, for the reasons that follow, another remand is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is remanded. The Board finds that the Veteran’s claim is not ready for adjudication and additional development is required. While a VA examiner has provided a positive nexus statement regarding the Veteran’s PTSD, she stated the diagnosis was based generally on his military experiences in Germany, to include the uncorroborated allegations that he witnessed an electrocution and an accidental discharge of a weapon. See August 2019 VA examination. A claim seeking entitlement to service connection for PTSD may not be granted without credible supporting evidence that a claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). Additional development is needed to attempt to verify the Veteran’s reported stressors. Second, the record reflects that the Veteran has an additional diagnosis other than PTSD for which a nexus opinion must be obtained before a decision may be made on the claim. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (the grant of service connection requires evidence of “a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.”). The record reflects that the Veteran has reported six potential stressors, whether to his mental health treatment providers, to a VA examiner, or in written statements in the claims file. First, the Veteran reported that he witnessed a fellow servicemember be assaulted with a razor/knife. Second, the Veteran reported that he witnessed soldiers be “run over” by a tank. Third, the Veteran reported that he was present for the accidental discharge of a weapon and feared for his life. Fourth, the Veteran reported that he witnessed a soldier get electrocuted. Fifth, the Veteran reported a physical altercation with an officer after being called a racial slur. Sixth, he alleged that he witnessed an aircraft catch on fire and saw three people burned. The AOJ has only attempted to verify three of these stressors. Regarding the assertion that the Veteran witnessed a razor/knife attack and an electrocution, the RO sent a request to the Joint Services Records Research Center (JSRRC) and was notified there was no documentation to corroborate the claimed stressors. The AOJ was also notified that there may have been a criminal investigation, and documentation could be requested from the US Army Crime Records Center. The AOJ sent a request to the US Army Crime Records Center in January 2013, and in February 2013, the AOJ received a response indicating that no records were available relevant to the request. The AOJ has exhausted its attempts to corroborate these two stressors. On numerous occasions, the Veteran has been requested to submit additional and more specific information regarding his claimed stressor of witnessing a dangerous weapon go off, yet he has not responded with the requested information. The AOJ has exhausted its attempts to corroborate this claimed stressor. In April 2020, the Board issued a decision remanding this claim and requesting the AOJ to undertake additional efforts to corroborate a stressor documented in an October 2019 AOJ memorandum or referenced in a September 2019 AOJ notice letter, to include the allegation that the Veteran witnessed the death of a fellow service member. The undersigned finds this remand directive unintentionally confusing. The October 2019 AOJ memorandum addressed the Veteran’s allegations regarding witnessing an electrocution which resulted in the death of Sgt. W, and the September 2019 AOJ notice referred to the Veteran’s claims of fear following an accidental weapons discharge. The JSRRC and the US Army Crimes Record Center have already confirmed that they are unable to verify the Veteran’s claims regarding the electrocution based on the current evidentiary record. Following the October 2019 AOJ memorandum and the September 2019 AOJ notice, the Veteran did not submit any additional information that would meaningfully allow for any additional search of records to verify the Veteran’s allegations regarding these two stressors. As stated above, the RO has exhausted its attempts in this regard. The Board finds that the AOJ has complied with the April 2020 remand directives, as demonstrated by the May 2020 AOJ notice and the Veteran’s nonresponse. See Stegall v. West, 11 Vet. App. 268 (1998). The RO is requested to send the Veteran a notice letter requesting additional information, to include names, dates, and locations, involving the remaining three stressors—witnessing a soldier having been run over by a tank, having a physical altercation with an officer and being called a racial slur, and witnessing a aircraft fire with burned victims. If sufficient evidence is obtained, the RO is requested to attempt to verify the stressors with the appropriate records repositories. Only if any of these stressors can be verified shall the claim be forwarded to a VA examiner for confirmation on whether these stressors have resulted in the Veteran’s diagnosis of PTSD. The August 2019 VA examiner diagnosed the Veteran with PTSD and a substance use disorder. The examiner wrote, “[f]or the claimant’s claimed condition of acquired psychiatric disorder, to include PTSD and a major depressive disorder, please refer to the diagnosis section.” This implies that the Veteran was not diagnosed with major depressive disorder. However, the Veteran’s outpatient records show that when he first sought mental health treatment, he was diagnosed with depressive disorder with a rule-out diagnosis of PTSD. See October 2009 mental health evaluation. The Veteran has also been positive on depression screening instruments, prescribed antidepressants, and his Social Security Administration (SSA) records indicate an affective disorder. The examiner did not adequately explain why the Veteran did not have a diagnosis of depression or why the claimed depressive disorder was not related to service. Therefore, on remand, an examiner must address these annotations. The matters are REMANDED for the following action: 1. The AOJ is requested to contact the Veteran and request additional specific information regarding his claimed stressors of witnessing a soldier having been run over by a tank, having a physical altercation with an officer and being called a racial slur, and witnessing a aircraft fire with burned victims. (a.) If sufficient identifying information is received from the Veteran, the AOJ is requested to undertake efforts to verify these stressors with the appropriate records repository. (b.) The Veteran must be notified that his failure to respond to any request for information may result in a denial of his claim. (c.) All attempts to verify the identified stressors must be documented in the claims file. If the AOJ is unable to request verification, or the stressor cannot be verified, it must also be documented in the claims file. 2. THEN, schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, including PTSD, and depressive disorder. If an in-person examination is not feasible, the Veteran must be afforded an examination by other means. All necessary tests should be conducted. The entire claims file and a copy of this remand should be made available to the examiner for review. The examiner should respond to the inquiries below: (a.) ONLY IF, the RO is able to corroborate any of the stressors identified in remand directive (1) above, should the VA examiner be requested to address whether the Veteran meets the DSM-5 criteria for PTSD based on the corroborated stressor(s). (b.) The examiner must review and address the following outpatient VA records: (1) January 2020 screenings indicating severe symptoms of depression and anxiety; (2) February 2019 and April 2019 annotations indicating “+ depression;” (3) the October 2009 mental health evaluation indicating an Axis I diagnosis of “Depression NOS, PTSD-like symptoms second to incidents witnessed during military service;” and (4) the SSA record showing that the Veteran filed a claim involving PTSD only, but was diagnosed with an affective disorder in November 2013. (c.) The examiner must opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s depressive disorder or affective disorder, as diagnosed in the various medical records, is etiologically related to his active duty service, to include his claims of witnessing a fellow servicemember being assaulted with a razor, witnessing soldiers be “run over” by a tank, being present for the accidental discharge of a weapon, being in a physical altercation with an officer after being called a racial slur, or witnessing a soldier getting electrocuted, or witnessing an aircraft on fire with burned victims. If there is a clinical basis to support or doubt the history or allegations provided by the Veteran, the examiner should provide a fully reasoned explanation for such a conclusion. (d.) If the examiner finds that the Veteran does not meet the relevant criteria to establish a diagnosis of depressive disorder, the examiner must: (1) indicate what criteria/symptoms for such a diagnosis are lacking; and (2) expressly address any diagnoses of depression and an affective disorder contained in the records, and explain whether the depression has since resolved, or whether the examiner disagrees with those diagnoses and why. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. M. GALANTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.