Citation Nr: 21025450 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-34 968A DATE: April 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service with the United States Marine Corps from August 1967 to May 1970 with service in the Republic of Vietnam and the award of, among other things, the Combat Action Ribbon and the Navy Achievement Medal w/Combat V. In December 2018, the Veteran testified at a hearing before the undersigned and a transcript of that hearing has been associated with the claims file. In July 2019 the Board of Veterans’ Appeal (Board) granted service connection for tinnitus and denied service connection for left and right ear hearing loss as well as denied service connection for an acquired psychiatric disorder to include PTSD. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent July 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the July 2019 Board decision to the extent that it denied service connection for left and right ear hearing loss as well as service connection for an acquired psychiatric disorder to include PTSD. In December 2020, the Board dismissed the claim of service connection for left ear hearing loss, denied service connection for right ear hearing loss, and remanded the claim of service connection for an acquired psychiatric disorder included PTSD. Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. As to the claim of service connection for an acquired psychiatric disorder including PTSD, the Board in December 2020 remanded it to provide the Veteran with a new VA examination to see if he had a diagnosis of any acquired psychiatric disorder at any time during the appeal. The Board took this action because the JMPR found that the October 2013 and May 2015 VA opinions it relied upon in earlier adjudicating and denying the claim because of the lack of a current disability were not adequate. Specifically, the JMPR found the examinations inadequate, even though they were provided after an examination of the Veteran and a review of the record on appeal as well as supported by citation to evidence in the record and at the examination in addition to medical reasoning, because “neither examination report contains a rationale for the psychiatrist’s findings of no DSM-IV or DSM-5 diagnosis.” Also see AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV); AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2014) (DSM-5). Tellingly, the post-Remand record shows that VA obtained the new medical opinion in February 2021. Moreover, the February 2021 VA examiner, like the earlier October 2013 and May 2015 VA examiners, opined that the Veteran did not currently have and never had a diagnosis of an acquired psychiatric disorder including PTSD. Additionally, the February 2021 examiner’s opinion, like the earlier VA examiners opinion was provided after an examination of the Veteran and a review of the record on appeal as well as supported by citation to evidence in the record and at the examination in addition to medical reasoning. However, while the February 2021 VA examiner specifically stated that the Veteran “… does not meet diagnostic criteria for PTSD or a mental health disorder according to the DSM-IV or V…,” he does not provide a specific “… rationale for the … findings of no DSM-IV or DSM-5 diagnosis” as required by the JMPR. In this regard. in Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) the Court held that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand. Similarly, in McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) the Court held that the Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled. Therefore, notwithstanding the fact that the Court in Cohen v. Brown, 10 Vet. App. 128, 139-140 (1997) held that mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing or not diagnosing PTSD, the Board finds that the February 2021 VA examiner’s opinion is not adequate because he does not provide a specific “… rationale for the … findings of no DSM-IV or DSM-5 diagnosis” as required by the JMPR. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Therefore, the Board finds that it has no other option but to again Remand the appeal to obtain a new VA medical opinion as to whether the Veteran has a current acquired psychiatric disorder including PTSD which opinion includes a specific “… rationale for the … findings of no DSM-IV or DSM-5 diagnosis” as required by the JMPR. See 38U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998) (holding that, where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance) While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the VA/Board does not have. This would greatly help the Board and help expedite the case. 3. In order to comply with the JMPR and the last remand, obtain new medical opinions as to the diagnoses, if any, of the Veteran’s acquired psychiatric disorders to include PTSD ad well as opinions as to their origins. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) Provide a diagnosis for all acquired psychiatric disorders to include PTSD as defined by the DSM-IV and DSM-V. In order to comply with the JMPR and last remand, if the Veteran is again not diagnosed with any acquired psychiatric disorder to include PTSD as defined by the DSM-IV and DSM-V the examiner must articulate the reasoning underpinning this opinion to include the following: i. Provide a specific “… rationale for the … findings of no DSM-IV or DSM-V diagnosis” as required by the JMPR; ii. identify what facts and information--whether found in the record or outside the record—that support the opinion; and iii. explain how that evidence justifies the opinion. (b) For each diagnosed acquired psychiatric disorder to include PTSD, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. (c) If a psychosis is diagnosed, provide an opinion as to whether it manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service. As to the PTSD claim, in providing answers to the above questions the examiner should consider, among other things, the fact the Veteran has a confirmed stressor due to his documented combat service in the Republic of Vietnam. In providing answers to the above questions the examiner is also advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.