Citation Nr: 21029193 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-07 407 DATE: May 12, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include Posttraumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD) is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from July 1978 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Board denied the claim for entitlement to service connection for Major Depressive Disorder in March 2019. In April 2020, the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMPR), which vacated the portion of the March 26, 2019 Board decision that denied entitlement to service connection for MDD and remanded the matter. At an August 2018 Board Hearing, the Veteran testified before a Veterans Law Judge (VLJ) via videoconference, a transcript is of record. In November 2020, the Veteran was notified that the VLJ who conducted the August 2018 hearing was no longer employed by the Board. He was offered the opportunity for a new hearing. He was advised that if he did not respond within 30-days the Board would assume that he did not want an additional hearing. To date, the Veteran has not responded. The Veteran's claim has been expanded to include an acquired psychiatric disorder under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This matter was previously remanded in January 2021. For the reasons discussed below, remand is again warranted. 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder and major depressive disorder is remanded. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f). If a stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). The Board notes at the outset that the Veteran received the Southwest Asia Service Medal with 3 Bronze stars, and the Kuwait Liberation Medal. The January 2021 Board remand included remand directives to obtain an addendum opinion regarding the etiology of the Veteran's major depressive disorder. Upon remand, an addendum opinion was obtained in February 2021. The examiner opined a negative nexus between the Veteran's major depressive disorder and his in-service injury. As supporting rationale, the examiner noted that "There is no medical or behavioral health evidence to support that any mental illness was incurred while in the military. The lay statements were written decades after the veteran was discharged. The veteran was seen around 2007 after being laid off and because of his divorce. This was deemed to be an adjustment disorder. Adjustment Disorder is diagnosed due to a stressor or incident in one's life and usually resolves in 6-9 months. When the veteran relocated to Texas, he met with behavioral health at the Dallas VA. He was not given a diagnosis for depression until around 2013, which was twenty years after his discharge. Based on the presenting facts it is difficult to connect the veteran's current diagnosed illness to having been incurred while in the service. There was no incident, event, injury, or illness which can be connected to the veteran between his time in the service to when he sought treatment. He currently is being treated (prescribed medication and attending group). However, without more evidence, one cannot claim the condition was incurred within 50% probability without significant speculation." The Board finds the examiner's rationale inadequate. The Veteran is competent to report his symptoms. The mere fact that the Veteran reported his symptoms post service is not sufficient reasons to discount his lay statements. Moreover, upon further review the Board notes that the during his August 2018 Board hearing Veteran testified to symptoms of nightmares since his service in Desert Storm. Evidence shows that the Veteran has also reported that during service he was often frighted and could not breath so he would have to take off his mask. He reported that the most frightening thing was that he witnessed scud missiles being launched and shot down. The Veteran reported after his experiences he had dreams of war for approximately one to two years. This raises the reasonable possibility that the Veteran may warrant a diagnosis of PTSD consistent with DSM-V. Remand is warranted to assess these additional contentions and any potential diagnoses. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all outstanding records have been obtained, schedule the Veteran for an in-person examination with a different examiner than the previous examiners in this case. The examiner is asked to opine whether the Veteran has a current disability of PTSD consistent with DSM-V. Relevant testing should be performed in the context of this consideration and results should be associated with the report of examination. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor to include fear of hostile military or terrorist activity. In rendering an opinion, the examiner is to consider the Veteran's lay testimony regarding his service during Desert Storm and his claimed re-experiencing of traumatic events. The examiner should also opine whether the Veteran's major depressive disorder is at least as likely as not related to an in-service injury, event, or disease to include consideration of whether his MDD is due to his fear of hostile military or terrorist activity which he experienced while serving in Southwest Asia. In rendering an opinion, the examiner should address the July 2013 VA treatment record which notes that the Veteran's depression or anxiety is likely related to the Veteran's military experience. The examiner additionally should consider the lay statements of record to include the statements from the Veteran's sister. In rendering an opinion, the examiner should also consider and address the Veteran's contentions that he has experienced bouts of depression since military service which have waxed and waned but not subsided. The Veteran should be considered credible for the purposes of this examination only. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.