Citation Nr: 21032770 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-36 008 DATE: May 27, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and dysthymic disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to August 1985, and from March 1986 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran, as a layperson, is not competent to distinguish between psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran's original claim for service connection for major depressive disorder has been expanded to include his other possible acquired psychiatric disorders, to include PTSD, depression, and dysthymic disorder, and the claim has been recharacterized as such. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. The Board remanded the issues on appeal for additional development in August 2018. However, because the directives have not been substantially complied with, the matter must be remanded again. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and dysthymic disorder, is remanded. The Veteran originally claimed entitlement to service connection for depression in May 2012, and was denied in a November 2012 rating decision without a VA examination. After a Board remand dated August 2018, VA provided an examination in June 2019 with a negative opinion for service connection. However, the Board finds this June 2019 VA examination to be inadequate, and thus the remand instruction from the August 2018 Board remand has not been substantially complied with. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 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(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The Board has identified two significant problems. The first is that the Veteran is claiming service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and dysthymic disorder. In order to establish the possibility of a valid PTSD diagnosis, there must be confirmation of the claimed in-service stressors. If PTSD is not formally diagnosed but another acquired psychiatric disorder is, then a causal relationship between the present diagnosed disability and the incident or injury from service must be ascertained. However, the Veteran's claims file is lacking almost all of the Veteran's service personnel records. While the Veteran's service medical records are present, the Veteran's personnel records, which could contain the detail of incidents the Veteran has asserted are the basis of his psychiatric disorder(s), are not present, except for a few pages. As an example, the Veteran has referred to an aviation accident while assigned to the aircraft carrier Nimitz, and yet, there is no personnel record in the current claims file that shows the Veteran was assigned to the Nimitz. Given that the Veteran served 24 years of active duty in the Navy and retired in December 2005, there should be substantial personnel records from the Veteran's extended active service. The Board notes with emphasis that the Veteran, who has asserted in the past that the VA has failed in its duty to assist, must do what he can to assist in the construction of the complete record to assist in the development of his claims. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board will direct the RO to contact the Veteran as part of this remand to assist in procuring copies of personnel records that he may have, as well as pertinent locations, descriptions, and dates with as much accurate detail as possible to facilitate the investigation of the record pertinent to the Veteran's claim for an acquired psychiatric disorder. The second significant problem regarding this claim was an inadequate VA examination and opinion provided in June 2019 following the previous Board remand of August 2018. The examination was focused primarily on PTSD and its stressor requirement but did not discuss beyond cursory mention the other psychiatric diagnoses the Veteran has received since first seeking VA mental health treatment in 2012. The examiner's opinion was cursory and conclusory, saying only that there was no objective medical evidence found to support this nexus, without any further discussion, without any further analysis, without any further examples of the Veteran's records to support. The Veteran served 24 years on active duty across multiple assignments and has asserted certain incidents in his military service are the cause of his currently diagnosed psychiatric conditions. VA medical records at various times already indicate diagnosis of and treatment for PTSD, depression, anxiety, and dysthymic disorder. The June 2019 VA examiner did not discuss any of the other psychiatric conditions already diagnosed or their potential relationship to service. The Board finds that the cursory and conclusory one-line discussion for service connection to be inadequate and must remand again for a suitable examination and opinion for service connection. There was no discussion of the Veteran's psychiatric diagnoses. The one opinion given was conclusory and without any rationale. The examiner checked the box on the form regarding access to the Veteran's claims file, but the content of the opinion does not indicate familiarity with the Veteran's records, his lay statements, and his assertions regarding his claims to acquired psychiatric disorders. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case. See Stefl, supra. A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional). Furthermore, the United States Court of Appeals for Veterans Claims (Court or CAVC) has held on numerous occasions that opinions regarding service connection are inadequate when they do not address whether any of the Veteran's service experiences resulted in the manifestation of any presently occurring acquired psychiatric disorder. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). See, e.g., Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (VA must conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment.") Here, the Board notes the June 2019 opinion does not address any of the Veteran's service experiences, and remand is necessary for a VA examiner to consider that. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated relevant VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file, with special emphasis on the Veteran's personnel records, to include those that may add fidelity to the Veteran's assertions regarding his claims for an acquired psychiatric disorder. 2. After the above records search is complete and any additional records are added to the claims file, then schedule the Veteran for the appropriate VA examination with a VA or VA-contracted psychiatrist or psychologist, preferably one who has not examined the Veteran before, to determine the nature and etiology of the Veteran's acquired psychiatric disorder(s), to include PTSD, major depressive disorder, and dysthymic disorder. The claims file must be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner(s) should identify any acquired psychiatric disorder present. For each psychiatric disorder identified, the examiner should offer an opinion as to the following: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's acquired psychiatric disorder(s) are related to his active duty service, or are otherwise related to any in-service disease, event, or injury? A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.