Citation Nr: 21041488 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 09-31 398 DATE: July 9, 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 October 1973 to October 1974. In June 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing and a transcript of the hearing has been included in the claims file. In a January 2019 decision, the Board denied the Veteran's claim for service connection for an acquired psychiatric disorder. He appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (Joint Motion), in an April 2020 Order, the Court remanded that Board decision for readjudication in accordance with the Joint Motion. Thereafter, the Board remanded the Veteran's claim in November 2020. In the November 2020 Joint Motion, the parties agrees that the Board failed to provide an adequate statement of reasons and bases for whether the Veteran has an actual diagnosis of an acquired psychiatric disability, to include PTSD. The Board's November 2020 remand directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a psychiatric examination to address the etiology of any psychiatric disorder the Veteran currently has or has had during the course of his appeal (since February 2007). See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim"). Although the Veteran underwent a VA examination in December 2020, it is not adequate for adjudication purposes. First, the examiner found that the Veteran had anxiety disorder, but did not have a diagnosis of PTSD that conforms to Diagnostic and Statistical Manual, Fifth Edition (DSM-5) criteria. However, because the Veteran's appeal was originally certified to the Board prior to August 4, 2014, the applicable regulations require that a diagnosis of a psychiatric disability be in conformity with the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Compare 38 C.F.R. § 4.125(a) (2013) with 38 C.F.R. § 4.125(a) (2015). See also 80 Fed. Reg. 14,308, 14,309 (Mar, 19, 2015) (The amendment changing from the DSM-IV to the DSM-5 does not apply to claims which had been certified to the Board or were pending before the Board, the Court, or the Federal Circuit, even if that claim was eventually remanded to the AOJ at a later time.) Thus, the Board finds that a remand is necessary in order to obtain an examination that conforms to the criteria set forth in the DSM-IV. Second, the examiner was asked to address the etiology of all psychiatric disorders present during the course of the appeal (since February 2007). Such was not done. In this regard, the Board notes that outpatient treatment records dated just prior to the December 2020 VA examination show the veteran's ongoing treatment for PTSD and major depressive disorder. See September 2020 VA treatment records. Remand is also needed to reconcile the evidence of record. The Board regrets any further delay in this matter; however, for the reasons noted above, the matter is REMANDED for the following action: Schedule the Veteran for an additional VA examination pertaining to his claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. The claims folder must be made available for review. Any indicated tests and studies must be completed. Following examination of the Veteran and review of the claims file, the examiner should address the following: a.) Identify/diagnosis all psychiatric disorders per the DSM-IV that presently exists or that has existed during the appeal period. b.) If a diagnosis of PTSD per the DSM-IV is not made, the examiner is asked to identify the missing criteria and provide rationale for the negative finding, to include reconciling the negative finding with the diagnoses of PTSD that are included in the record. c.) If a diagnosis of PTSD per the DSM-IV is rendered, the stressor(s) should be identified. d.) If any other acquired psychiatric disorders are diagnosed for the entire period of the appeal (since February 2007), the examiner must opine whether it is at least as likely as not (50 percent probability or more) that each diagnosed disorder began in service, was caused by service, or is otherwise related to an in-service injury, event, or disease. The examiner is asked to provide rationale for all findings, to include reconciling the findings with the diagnoses major depressive disorder with psychotic features, anxiety disorder, and substance use disorder that are included in the record. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating 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 in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.