Citation Nr: 21028417 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-39 876 DATE: May 11, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for any acquired psychiatric disorder, to include PTSD, depression, and anxiety is remanded. FINDING OF FACT Since the last, final January 2015 rating decision, evidence has been added to the record that was not previously considered by agency decisionmakers and which pertains to a previously unestablished element of the claim. CONCLUSION OF LAW The criteria for reopening the Veteran's claim for service connection for PTSD have been met. 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1993 to January 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2020; a transcript of the hearing has been associated with the Veteran's claims file. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claims to include any psychiatric disorder. As emphasized in Clemons, even though a Veteran may only seek service connection for PTSD, the Veteran's claim cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed. The Board has recharacterized the Veteran's reopened claim accordingly. New and Material Evidence Service connection for PTSD was denied in a January 2015 rating decision. The Veteran did not appeal that decision and new and material evidence was not received within one year of that rating decision. Accordingly, it became final. The Veteran then filed a January 2018 VA 21-526EZ Fully Developed Claim (FDC) seeking service connection for PTSD under Diagnostic Code 9411. The Board notes that evidence received since the January 2015 rating decision denying service connection for PTSD includes a undated private Psychological Evaluation received by VA in January 2018, hearing testimony from September 2020 and multiple VA treatment records indicating the Veteran may have an acquired psychiatric diagnosis of PTSD. As this additional evidence is relevant, new, and material, this claim may consequently be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The reopened claim is further addressed in the remand instructions below. REASONS FOR REMAND A review of the claims file reveals April 2019 VA initial PTSD examination, the Veteran's most recent psychiatric examination, wherein the examiner noted an inability to confirm or deny a psychological diagnosis without resorting to speculation or conjecture. The Board acknowledges that the United States Court of Appeals for Veterans Claims has held that generally, where an examiner is unable to give an opinion without resorting to mere speculation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). As the examiner determined that she was unable to form an opinion without resorting to mere speculation, the Board finds that a remand for another examination is necessary as the April 2019 VA initial PTSD examination is inadequate; accordingly, a new medical opinion should be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, the Board notes evidence dated after the March 2018 rating decision suggests the Veteran may have multiple acquired psychiatric diagnoses. The Board finds that the nature and etiology of all acquired psychiatric diagnoses, to include depression and anxiety, should also be further addressed on examination. The matters are REMANDED for the following action: Schedule the Veteran for the appropriate VA mental disorders examination, to be performed by a psychiatrist or psychologist, to determine the existence and etiology of any psychiatric disorder found to be present. The claims folder, including a copy of this remand, must be provided to the examiner for review of pertinent documents therein, and the examination report should reflect that such review was accomplished. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the examination report. All prior psychiatric diagnoses of record, including those noted above, should be considered. If any psychiatric disorder is diagnosed (e.g., major depression, anxiety, or PTSD), the examiner is asked to opine if it is at least as likely as not (a 50 percent or greater probability) that such disorder is etiologically related to the Veteran's active duty service. If no disorders are diagnosed, this finding must be explained in the context of the entire record and any prior diagnoses. All opinions must be supported by a complete rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.