Citation Nr: 21031933 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-35 831 DATE: May 25, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to December 1978. Unfortunately, during the pendency of the present appeal, the Veteran died in February 2019. In April 2020, the Agency of Original Jurisdiction (AOJ) substituted the Veteran's surviving son for the Veteran as the appellant pursuant to 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before a Veterans Law Judge (VLJ) at a February 2017 Board hearing. The VLJ who conducted the hearing is no longer available to participate in the appeal. VA regulations require that the VLJ who conducted a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. The appellant was notified of his right to request an additional hearing in a March 2021 letter. He was told that if he did not respond within 30 days the Board would assume that he did not want an additional hearing, and would proceed accordingly. More than 30 days have lapsed without a response, and thus, the Board shall proceed with its appellate consideration without an additional Board hearing. The Board remanded this matter in October 2017 for additional development. 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. The Veteran asserted that service connection for an acquired psychiatric disorder is warranted due to military sexual trauma (MST). In May 2020, the appellant submitted a statement indicating that his mother told him about her in-service MST and that he has witnessed her depression and isolationism. As noted above, the Board remanded the claim in October 2017 for additional development, to include a VA examination. Unfortunately, the Veteran died before the examination could be completed. Nonetheless, the AOJ failed to obtain an opinion based on a record review as to the etiology and nature of the Veteran's diagnosed psychiatric disorders. As there has not been substantial compliance with the Board's previous remand directives regarding the issue of service connection, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Ensure that the appellant has been provided proper Veterans Claims Assistance Act notice of the elements necessary to substantiate a claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, based on a claim of in-service personal assault. 2. Obtain an opinion from an appropriate mental health professional regarding the nature and etiology of the Veteran's acquired psychiatric disability, based on a review of the claims file and application of medical/mental health expertise. The examiner should address the following: (a) Identify all diagnosed psychiatric disorders, including but not limited to PTSD, major depressive disorder, and anxiety disorder. If the examiner finds that the DSM-5 criteria for a PTSD diagnosis have not been met, either due to lack of sufficient stressor or otherwise, the examiner must explain why this is so. (b) For each mental health disorder diagnosed within the appellate period, is it at least as likely as not that the disorder had its onset during or was otherwise caused by the Veteran's active duty service? The Veteran has alleged that she experienced a psychiatric disability as a result of MST. The Veteran's statement regarding the alleged in-service sexual assault is located in the February 2017 Board hearing transcript. In offering the requested opinion, if there is a PTSD diagnosis, the examiner should identify which stressor(s) upon which the diagnosis is based. In assessing the veracity of the Veteran's assertions regarding her alleged MST, the examiner should discuss whether there are any markers in her service department records, including but not limited to behavioral changes after the asserted assault, to support the occurrence of in-service MST. In contrast, a diagnosis other than PTSD may be linked to a non-verified incident in service, as long as the evidence of record otherwise establishes that the injury, disease, or event at least as likely as not occurred as reported. The VA examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, established medical principles, and references to the evidence of record, as appropriate. M. GALANTE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.