Citation Nr: 21032198 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-59 794 DATE: May 26, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2015 by a Department of Veterans' Affairs (VA) Regional Office. In January 2020, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2020, the Board remanded the issue on appeal, as well as a claim for service connection for sleep apnea, for additional development. While on remand, an August 2020 rating decision awarded service connection for obstructive sleep apnea. As such constitutes a complete grant of the benefits sought on appeal with respect to such issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining claim now returns for further appellate review. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. As noted in the April 2020 remand, the Veteran contends that he has an acquired psychiatric disorder, to include PTSD, related to his military service. Specifically, he reported that, while serving in Germany from May 1988 to May 1990, one of the military policemen, Specialist Simon, threatened suicide, which caused the base to be locked down in June 1989, and, as a result of heightened tensions during the fall of the Berlin Wall beginning in November 1989, his unit was subject to base restrictions/lockdowns and numerous combat alerts. In regard to the latter experience, the Veteran reported that, as part of his duties of his military occupational specialty of automatic data telecommunications center operator, he monitored highly classified communications regarding the movements of troops and political leaders, and was fearful of potential nuclear, biological, and/or chemical attacks. At such time, the Board noted that, while the Veteran's service treatment records were negative for any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder, he and his spouse, who knew him prior to service and re-met him in 1992, reported the onset of psychiatric symptoms, to include hyper-vigilance, coincident to his military service. The Board further took note of VA treatment records, to include those dated in May 2011 and August 2011, reflecting the Veteran's report of military stressors, to include the servicemember's threat of suicide and his fear of nuclear, biological, and chemical warfare attacks while the Berlin Wall was being torn down, and childhood stressors, to include episodes of abuse and violence due to his parents' fighting, mental abuse by his parents, his childhood home burning down, and being bullied at school, and the resulting diagnoses of PTSD due to childhood and military stressors, depression not otherwise specified (NOS), anxiety NOS, and obsessive-compulsive disorder (OCD). The Board also observed that there were conflicting opinions regarding the nature and etiology of the Veteran's various acquired psychiatric disorders. Specifically, it was noted that a September 2017 VA examiner opined that Veteran did not meet the American Psychiatric Association's Diagnostic and Statistical Manual, Fifth Edition (DSM-5), criteria for a diagnosis of PTSD related to military service as his reported stressor of serving in Germany when the Berlin Wall was torn down did not conceptually meet the stressor criterion (i.e., Criterion A) and, even if it did, there was no evidence of re-experiencing symptoms of such event that would substantiate a diagnosis of PTSD related to such experience. Furthermore, she noted that the Veteran had been diagnosed with PTSD, but such was related to childhood trauma. In this regard, the examiner noted that, while the Veteran did not endorse childhood trauma on examination, the aforementioned VA treatment records record an extensive history of childhood trauma. Additionally, while the Veteran was diagnosed with unspecified anxiety disorder at the VA examination, she opined that, as VA treatment records indicate a clear nexus between his current symptoms and childhood trauma, and there was no clear nexus between such symptoms and military service, such disorder was less likely than not caused by or related to military service. Conversely, the Board noted that, subsequent to the September 2017 VA examination, the Veteran testified at the January 2020 Board hearing that he was not bothered by any childhood experiences; rather, he and his spouse asserted that his psychiatric symptoms had their onset coincident to his military service. Further, in January 2020, a VA-trained and -certified private psychologist found that the Veteran directly experienced a traumatic event and found that a current diagnosis of PTSD was incurred in or caused by his in-service stressor of fear of hostile military or terrorist activity. However, the Board found that, while the January 2020 private psychologist found that Veteran directly experienced a traumatic event and related his PTSD to his fear of hostile military or terrorist activity, she did not identify the specific stressor. Additionally, while the September 2017 VA examiner found that the Veteran's reported in-service stressor regarding his experiences in Germany during the fall of the Berlin Wall did not meet Criterion A for a diagnosis of PTSD, it was unclear whether such meet VA's definition of fear of hostile military or terrorist activity so as to be sufficient to support a diagnosis of PTSD under the DSM-5. Further, while she diagnosed unspecified anxiety disorder, which she found was unrelated to the Veteran's military service, neither she nor the January 2020 private psychologist addressed the other psychiatric diagnoses of record, to include depression NOS and OCD. Finally, the Board found that the evidence was in conflict as to the nature and impact of the Veteran's reported childhood trauma on his current psychiatric disorder. Thus, the Board remanded the case in order to afford the Veteran a new VA examination so as to determine the nature and etiology of his acquired psychiatric disorder. In doing so, the Board directed that the examiner identify all of the Veteran's acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time since February 2015, or in close proximity thereto, to include PTSD, depression NOS, anxiety NOS, and OCD. He or she was further advised that, if a diagnosis of PTSD is rendered, he or she should offer an opinion as to whether such is at least as likely as not the result of a verified in-service stressor related to the Veteran's fear of hostile military or terrorist activity, as opposed to childhood trauma and, in doing so, consider (i) the conflict between the May 2011 VA treatment record that initially diagnosed PTSD based on childhood trauma, to include mental abuse by both parents, the loss of the Veteran's childhood home to a fire, and bullying at school, with the Veteran's subsequent report that, while domestic violence was present in his childhood home, he was unaffected by such experiences, and address (ii) whether the Veteran's report of his experiences while stationed in Germany during the fall of the Berlin Wall, to include being subject to base restrictions/lockdowns and numerous combat alerts, which resulted in fear of potential nuclear, biological, and/or chemical attacks, is related to his fear of hostile military or terrorist activity and sufficient to support a diagnosis of PTSD under the DSM-5. Finally, for each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner was instructed offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include the threat of suicide by another service member and/or his experiences while stationed in Germany during the fall of the Berlin Wall. In July 2020, the Veteran underwent a new VA examination, at which time the examiner found that he did not have a diagnosis of PTSD pursuant to DSM-5 as Criterion A had not been met, i.e., there was no exposure to actual or threatened a) death, b) serious injury, or c) sexual violation. In this regard, she found that the Veteran's experiences while stationed in Germany that reportedly resulted in fear of potential nuclear, biological, and/or chemical attacks were not related to a fear of hostile military or terrorist activity and, therefore, insufficient to support a diagnosis of PTSD under the DSM-5. In support of such determination, she noted that fear of potential events does not rise to the level of Criterion A for a diagnosis of PTSD under DSM-5 because such specifies fear that occurs during or soon after an actual traumatic event. Rather, the examiner diagnosed unspecified anxiety disorder, but opined that the Veteran's medical records did not support a finding that such disorder was incurred in or caused by fear for life from hostile forces during service, the threat of suicide by another service member, and/or his experiences while stationed in Germany during the fall of the Berlin Wall. In this regard, she noted there was no report of mental health issues during the Veteran's service time and no consistent report of ongoing mental health problems since military service. She further found it pertinent that the Veteran did not seek mental health treatment until decades after service. The examiner further explained that the Veteran did not claim symptoms consistent with the DSM-5 criteria for diagnoses of OCD or depression NOS on examination. She also found that there was no evidence reported in the examination suggesting that any of the Veteran's childhood events caused mental health problems prior to service as evidenced by his level of functioning related to school and employment, his lack of legal problems and functional impairment prior to entering service, and medical literature. Upon review, the Board notes that the absence of evidence of complaints, treatment, or a diagnosis referable to an acquired psychiatric disorder in the Veteran's service treatment records cannot serve as the sole basis for a negative opinion. Likewise, a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. The Board finds this particularly significant in the instant case in light of the Veteran's testimony that he and his spouse noticed psychiatric symptoms coincident to his military service in 1992. Additionally, although the July 2020 VA examiner found the only diagnosis applicable to the Veteran's current symptoms was unspecified anxiety disorder, VA treatment records dated as recently as September 2017 reflect active problems of recurrent depression and OCD. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Therefore, the Board finds a remand is necessary to obtain an addendum opinion that addresses the Veteran's and his spouse's lay statements regarding his in-service and post-service symptoms as well as the additional diagnoses of acquired psychiatric disorders rendered during the pendency of the appeal. The matter is REMANDED for the following action: Return the record, to include a copy of this remand, to the VA examiner who conducted the July 2020 psychiatric examination, or an appropriate medical professional, if she is unavailable. Following a review of the record, the examiner should address the following inquiries: (A) Indicate whether the Veteran has a diagnosis of (1) depression NOS and/or (2) OCD that meet the DSM-5 criteria at any time proximate to his February 2015 claim, even if such is asymptomatic or has since resolved. If the examiner finds that the Veteran does not meet the criteria for such diagnoses, he or she should reconcile such determination with the VA treatment records that reflect such diagnosed disorders as of September 2017. (B) For the Veteran's diagnosed disorder of unspecified anxiety disorder and, if diagnosed pursuant to (A), depression NOS and/or OCD, the examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to the Veteran's military service, to include the threat of suicide by another service member and/or his experiences while stationed in Germany during the fall of the Berlin Wall. In offering such opinion, the examiner must consider and discuss the lay statements of record from the Veteran and his spouse, who knew him prior to service and re-met him in 1992, that his psychiatric symptoms, to specifically include hypervigilance, had their onset coincident to his military service and have continued to the present time. The examiner is advised that the absence of evidence of complaints, treatment, or a diagnosis referable to an acquired psychiatric disorder in the Veteran's service treatment records cannot serve as the sole basis for a negative opinion. The examiner is also advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran's lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records or the fact that the Veteran is not qualified to diagnose any disability based on the reported symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.