Citation Nr: 21029892 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-53 316 DATE: May 17, 2021 REMANDED Entitlement to service connection for an acquired psychiatric condition, other than PTSD, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from May 1968 to March 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this issue originally stems from a service connection claim for post-traumatic stress disorder (PTSD). The Veteran's claim for service connection for PTSD was originally denied in an August 2012 rating decision. The August 2012 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. In the June 2015 rating decision, the RO denied reopening the claim for service connection for PTSD as new and material evidence had not been received. In August 2019, the Board denied the Veteran's request to reopen his service connection claim for PTSD because new and material evidence was not received. The Veteran then successfully appealed to the Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's denial to reopen his service connection claim for PTSD and remanded the issue for readjudication. In February 2021, this issue came back to the Board for readjudication. The Board noted the case of Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009), where the Court found that the scope of a claim cannot be limited by the terminology used by the lay Veteran, and instead must include any disability reasonably encompassed by (1) the description of the claim, (2) the described symptoms, and (3) any other relevant evidence of record. Id. Accordingly, the Board noted that the Veteran's service connection claim for PTSD was expanded to be construed as a service connection claim for any other psychiatric disorder for which the Veteran was diagnosed. As such, the claim to reopen for PTSD remained denied because there was no new and material evidence, while the issue of service connection for acquired psychiatric condition, other than PTSD, was bifurcated. However, since the Board was precluded from adjudicating the claim in the first instance, the matter was remanded to the RO to develop and adjudicate the claim. The RO denied the issue of service connection for an acquired psychiatric condition, other than PTSD, in the February 2021 Supplemental Statement of the Case (SSOC). This issue is now properly before the Board for adjudication. Entitlement to service connection for an acquired psychiatric condition, other than PTSD, is remanded. The Veteran contends that he has a psychiatric condition that is related to an event he experienced in service. Specifically, he states that while he was stationed at Fort Benning, he witnessed his unit's first sergeant's mutilated and dead body in the barracks. The Veteran asserted that he can't erase the memory and has nightmares that scare his wife due to this event. See Statement in Support of Claim (July 2011); See Military Personnel Record DA Form 2173. In August 2012, the Veteran was afforded a VA examination for PTSD. The examining psychologist diagnosed the Veteran with current depressive disorder. Additionally, the examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Under stressors, the examiner noted that the Veteran reported an incident in which he was exposed to his sergeant's injury where the sergeant later died. The examiner further noted that the "Veteran did not witness incident or the body." The examiner concluded that the Veteran's depressive disorder "would require speculation to determine given the years elapsed between military service and the report of symptoms." The Board finds the August 2012 VA examination to be inadequate for the reasons below. Generally, once VA undertakes to provide an examination, it must provide one adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). First, the examiner's opinion relied solely on the absence of diagnosis or treatment during active duty and post-service. However, the absence of treatment records should not be the primary basis for an opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992)) (noting that an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the veteran's current disability and his military service). Second, the examiner failed to accurately consider the Veteran's lay statements. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner inaccurately noted that "Veteran did not witness incident or body," when the Veteran has contended in several documents that he did witness the mutilated body. See Statement in Support of Claim (July 2011); See also Military Personnel Record DA Form 2173. Furthermore, the Board notes that a "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, a remand is required to obtain an adequate medical opinion. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records an associate them with the claims file. 2. Schedule the Veteran for a VA examination for his acquired psychiatric conditions, other than PTSD. If the Veteran fails to appear to the VA examination without good cause, the examiner is then asked to provide an addendum opinion addressing the etiology for the Veteran's depressive disorder, and any other acquired psychiatric disorder, other than PTSD, that is evidenced by the record. After reviewing the electronics claims file, including a copy of this remand, the VA examiner is requested to opine as to the following: (a.) Identify by diagnosis for any acquired psychiatric conditions, other than PTSD. (b.) For EACH acquired psychiatric condition, other than PTSD, is the Veteran's psychiatric condition at least as likely as not related to service? Why or why not? In doing so, the examiner must specifically consider and address the diagnosis of depressive disorder in the May 2012 VA examination in the record. Additionally, the examiner must specifically consider and address the Veteran's lay statements concerning witnessing the mutilated and dead body of another service member, details of which are contained in a DA Form 2173, dated October 1969. (Continued on the next page) The examiner must provide a complete and fully articulated explanatory rationale for any opinion expressed that is based on the examiner's clinical experience and medical expertise; established medical principles; and evidence in the electronic claims file. If after consideration of all pertinent factors it remains that the opinion cannot be given without resorting to speculation, it should be so stated, and the provider must explain why the opinion sought cannot be offered without resort to speculation. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Law Clerk for the Board N. Jamordee 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.