Citation Nr: 21027475 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 06-20 799 DATE: May 5, 2021 REMANDED Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1965 to November 1969. This case has a lengthy procedural history. Most recently, in May 2018 the Board remanded the appeal for additional development. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that is related to his military service. In support of his claim, he reported numerous stressors related to Vietnam service to include coming under fire (conceded by VA as a confirmed stressor) and shooting a Vietnamese child. The record contains various diagnoses including PTSD, anxiety disorder, and substance abuse. The Veteran underwent a VA examination in February 2010. The examiner stated that the primary problem in terms of the PTSD claim was the stressor criterion and that the Veteran did not report the confirmed stressor was that upsetting or difficult for him. He appeared unusually calm and emotionless when discussing his traumatic experiences in Vietnam except for the discussion of the death of the child. The examiner opined that it was not appropriate to diagnose the Veteran with PTSD and that the appellant's symptoms were not linked to any confirmed stressor from service. In September 2010, the Board denied the claim finding that the evidence did not establish that the Veteran had PTSD associated with a verified in-service stressor. In making this determination, the Board acknowledged the amended PTSD regulation, see 38 C.F.R. § 3.304(f)(3), but found that the claimed stressor of having killed a child in Vietnam was not related to "fear of hostile military or terrorist activity" and thus must be verified. In April 2012, the United States Court of Appeals for Veterans Claims (Court), vacated the September 2010 decision and remanded the matter for further proceedings consistent with its Memorandum Decision. The Court noted the appellant's argument that the killing of a civilian would constitute a stressor for purposes of § 3.304(f)(3). See 75 Fed. Reg. 39843, 39844 (July 13, 2010). The Court also noted the Secretary's assertion that the Board should consider whether the Veteran's lay testimony alone may establish the occurrence of his claimed stressor consistent with § 3.304(f); and the Secretary's concession that remand was warranted for VA to discuss whether the appellant was provided an adequate examination or opinion that considers whether his reported stressor of shooting an unarmed child is adequate to support a diagnosis of PTSD and whether the symptoms are related to the claimed stressor. The Court agreed with the Secretary and remanded the claim for the Board to provide adequate reasons and bases in this regard. Following an October 2012 remand, the Veteran was provided a VA examination in September 2015. The examiner, however, was unable to provide an opinion at that time as records were pending scanning. VA has since determined that the September 2015 interview report is unavailable for review. VA subsequently requested an opinion and noted that the only confirmed stressor was coming under attack. The request further states that VA did not have enough information to confirm the stressor of shooting a small child. In April 2017, a VA psychologist opined that the Veteran did not have a diagnosis of PTSD or any other diagnosed psychiatric condition that was related to active service or events therein, to include fear of hostile military or terrorist activity. In May 2018, the Board noted only one verified stressor (that the Veteran's base was attacked with casualties) and stated that the other claimed stressors have not been verified. It further noted that the 2017 VA examiner did not conduct an in-person examination and did not have access to the 2015 interview report. The medical evidence was considered inadequate and thus, the appeal was again remanded. Thereafter, VA requested another in-person examination. A compensation and pension exam inquiry indicates that the Veteran declined the examination. The Board notes that the Veteran is currently incarcerated and given his refusal to report, additional efforts to obtain an in-person examination are not required. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). Notwithstanding, there does not appear to be substantial compliance with the directives in the April 2012 Memorandum Decision. That is, the subsequent remands continue to note only one confirmed stressor and indicate that the stressor in question (shooting a child) has not been verified. They do not address whether the Veteran was provided an adequate opinion that considers whether his claimed stressor of shooting an unarmed child is adequate to support a diagnosis of PTSD and whether the symptoms are related to that claimed stressor. On review, additional opinion is warranted. Dyment v. West, 13 Vet. App. 141 (1999) (it is substantial compliance with remand orders that is required in order to meet the obligations of Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Return the April 2017 VA opinion for an addendum. If the April 2017 examiner is no longer available, the requested information should be obtained from an appropriate psychologist or psychiatrist. The claims folder must be available for review. A telehealth or telephone examination of the Veteran is not required unless the examiner deems it necessary. The psychologist or psychiatrist is requested to state whether the Veteran has had a confirmed diagnosis of PTSD at any time during the appeal period (from February 2005 to the present). In making this determination, the examiner should consider only the Veteran's claimed stressor of shooting an unarmed child while serving in Vietnam, and must address whether the stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. The examiner is advised that "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others (which includes civilians). The Veteran's report indicates that the reason he shot may have been due to fear of a perceived threat. If there is a reason to doubt the Veteran's history as reported, the examiner should state and explain why. (Continued on the next page) A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.