Citation Nr: 21025125 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-26 874 DATE: April 27, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 1982 to May 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision which, in relevant part, denied service connection for PTSD and for a psychoneurotic disorder claimed as antisocial personality disorder and schizophrenia. A September 2019 Board decision, inter alia, denied service connection for antisocial personality disorder. The decision noted prior final rating decisions in July 1994 and September 2002 which denied service connection for depression and mental problems, respectively. The Board reopened the claim seeking service connection for an acquired psychiatric disorder, including PTSD, and denied such on de novo review. [The September 2019 Board decision also declined to reopen claims seeking service connection for a respiratory disability and for bilateral hearing loss.] The Veteran appealed the portion of the September 2019 Board decision which denied service connection for an acquired psychiatric disorder, including PTSD, on de novo review to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a July 2020 Joint Motion for Partial Remand (JMPR) by the parties. [The Veteran did not challenge the Board’s denial of entitlement to service connection for antisocial personality disorder, or the Board’s denials of petitions to reopen claims of service connection for a respiratory disability and bilateral hearing loss. The parties requested that such matters be dismissed. Accordingly, they are no longer before the Board.] A July 2020 CAVC Order remanded the matter for compliance with the JMPR. On re-review of the record upon return from the CAVC, the Board notes that the Veteran had requested a Board hearing prior to the September 2019 Board decision, but a hearing was never held. See May 2017 VA Form 9; see also August 2019 statement. The Veteran’s prior requests for a Board hearing were not raised/addressed in the July 2020 JMPR. [Notably, in October 2020, the Veteran appointed a new (attorney) representative.] In March 2021, the Board sent a hearing clarification letter to the Veteran and his (new) attorney; he did not respond. Accordingly, the Board will proceed to remand this matter, as outlined/directed in the JMPR. See Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011); see also Savage v. Shinseki, 24 Vet. App. 259, 268-71 (2011). Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD The September 2019 Board decision denied service connection for an acquired psychiatric disability (on de novo review), based in part on findings that the Veteran’s statements (found by the Board to be inconsistent) lacked credibility, and that his statements regarding stressors in service were not corroborated by any credible evidence of record. In the July 2020 JMPR, the parties agreed that the Board erred by failing to provide an adequate statement of reasons or bases to support its decision. The parties agreed that the Board discussed 38 C.F.R. § 3.304(f)(5), the rules for developing a PTSD claim based on in-service personal assaults, and the Veteran’s October 2014 statement regarding being sexually assaulted by two of his supervisors, beginning in December 1982, and that his drug use and suicidal ideation in service were caused by his work environment. However, the parties found “the Board did not discuss whether this lay statement was evidence of in-service change in behaviors, which may serve as corroboration of [the Veteran’s] alleged stressors.” The parties also noted regarding the Veteran’s February 2016 statement in which he reported seeing people burned and killed in a steam-pressure incident while serving about the USS America: “The Board found [the Veteran’s] claimed stressors could not be corroborated; however, it does not appear a report of this incident was sent to the Joint Services Records Research Center for corroboration.” Considering the JMPR, the Board finds that further development of the record is necessary to comply with VA’s duty to assist in the development of facts pertinent to the claim. The occurrence of an alleged stressor event in service is a threshold adjudicatory determination that must be made in a claim seeking service connection for PTSD. Here, the originating agency (AOJ) has made no attempt to verify the reported injury and death of sailors in a steam-pressure incident; such event would be eminently verifiable [as is with any event involving deaths of servicemen], if it occurred. Accordingly, remand is necessary to attempt to corroborate/verify the reported steam-pressure incident aboard the USS America between November 1982 and April 1986. See February and March 2016 VA Forms 21-0781. [The Veteran’s service personnel records show he served on the USS America from November 1982 to April 1986.] When, as here, a claim for PTSD is (alternatively) based on an alleged personal assault or military sexual trauma (MST) in service, then evidence from sources other than the Veteran’s service records may corroborate the account of the stressor incident. Examples of such evidence include evidence of behavior changes following the claimed assault. 38 C.F.R. § 3.304(f)(5). In an October 2014 statement (received in November 2014), the Veteran reported that he was sexually assaulted in December 1982, and that he was beaten up in February 1983 “just before shellback initiation…in 3 main mach[in]ery room.” In a November 2014 statement (received in January 2015), the Veteran reported that he was sexually assaulted and “was preyed upon during [his] shellback initiation.” [The Veteran’s service personnel records show receipt of a shellback certificate in February 1983.] Personnel records thereafter show notations /court memoranda for marijuana possession (July 1983), unauthorized absence (April and November 1984), and dereliction of duty (October 1985). Accordingly, remand is necessary for an examination to determine whether such may be credible corroborating evidence of the alleged stressor events in service (the alleged MSTs). Finally. the record suggests that records of pertinent private treatment may remain outstanding. In a September 2020 statement (after the July 2020 JMPR), the Veteran (who was then incarcerated) requested that VA send him a medical records release form so he could authorize VA to obtain mental health treatment records dated 2012-2020 from the University of Texas Medical Branch, Health Service Archives. On remand, he will have the opportunity to identify (and provide releases for VA to obtain) outstanding private records of mental health treatment. [The Board notes that the Veteran was incarcerated during the period on appeal. However, an October 2017 state criminal justice record suggests he recently became eligible for release. As it is unclear whether or not he remains incarcerated, the AOJ should take all appropriate measures consistent with VA’s guidelines for developing claims of incarcerated veterans, if necessary.] The matter is REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his psychiatric disability. 2. Also, ask the Veteran to identify all providers of private evaluations or treatment he has received for his psychiatric disability, and to submit authorizations for VA to secure for the record complete clinical records from the providers identified, specifically including the University of Texas Medical Branch.  Obtain those records (all available). 3. Arrange for exhaustive development [such as a search of ship records, deck logs, and service department records listing deaths of any servicemembers] to verify the Veteran’s February and March 2016 reports of witnessing fellow servicemembers burned and killed in a steam-pressure incident aboard the USS America (in an engine or machinery room) between November 1982 and April 1986. If any further details are needed, elicit them from the Veteran before proceeding. Then, make a formal finding for the record regarding the Veteran’s account of the alleged stressor event in service, indicating whether or not it is corroborated by credible supporting evidence. [If development in this matter cannot be completed, there must be an explanation for the record why that is so; the scope of the development for corroboration must be described.] 4. When the development requested above is completed, (and taking all appropriate measures consistent with VA’s guidelines for developing claims of incarcerated veterans, if necessary), arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist for an advisory medical opinion regarding the nature and likely etiology of his claimed psychiatric disability. On review of the record (including this Remand, the Veteran’s stressor statements, and any formal finding regarding alleged stressors made pursuant to the development ordered above), and interview/examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) Identify (by diagnosis) each psychiatric disability entity found/or shown by the record during the pendency of this claim. If PTSD is diagnosed, specifically indicate whether or not such diagnosis is based on a stressor event found by the AOJ to be corroborated. If PTSD is not diagnosed, the examiner should indicate what symptoms needed for such a diagnosis are lacking. (b) Identify any credible corroborating evidence (other than the Veteran’s own account) in the record that he was the victim of MST in service. In particular the examiner should note the notations /court memoranda in the Veteran’s service personnel records regarding drug use, unauthorized absence, and dereliction of duty (outlined above) and opine whether or not such constitute the type of behavior changes that are corroborative evidence that a MST occurred during service. (c) If the response to (b) is Yes and PTSD is diagnosed, the examiner should further opine whether or not the Veteran’s PTSD diagnosis is based on the reported stressor of MST in service. (d) Identify the likely etiology for each diagnosed acquired psychiatric disability other than PTSD. Specifically, is it at least as likely as not (a 50% or greater probability) that such disability is etiologically related to the Veteran’s service/events therein? All opinions must include rationale that cites to supporting factual data and medical principles, as deemed appropriate. 5. Then review the record, arrange for any further development indicated (suggested by the responses to the development sought above), and readjudicate the remanded claim. [If the Veteran remains incarcerated and the correctional facility is unwilling to authorize an examination at a VA facility or by a VA psychologist or psychiatrist (or VA-contracted psychologist or psychiatrist) at the correctional facility, and all efforts to schedule and conduct such examination are exhaustive and further attempts are deemed infeasible, arranger for the Veteran’s record to be forwarded to an appropriate psychologist or psychiatrist for review and an advisory medical opinion that responds to the opinions sought above based on review of the record.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.