Citation Nr: 21042280 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-47 595 DATE: July 12, 2021 REMANDED Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 to July 1989, November 2010 to April 2011, and July 2011 to October 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In March 2021, the Board restored service connection for right knee arthritis, right knee arthritis with limitation of extension, and left knee osteoarthritis, and denied service connection for a low back condition, left hip condition, sleep apnea, and esophageal reflux. The Board's decision as to those claims are final. See 38 U.S.C. §§ 7103(a), 7104 (2012); 38 C.F.R. § 20.1100(a) (2020). Additionally, the Board remanded the Veteran's claim for service connection for a psychiatric condition, to include PTSD, for further development, to include providing the Veteran with a VA psychiatric examination and obtaining a VA etiology opinion. The Board finds there has not been substantial compliance with its March 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Although the Board regrets the additional delay, a remand is again necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). VA Examination and Medical Opinions Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, in providing the favorable April 2021 nexus opinions regarding the etiology of the Veteran's PTSD, the examiner explained that the Veteran was considered an accurate reporter of the events underlying the claimed stressors and that the claimed stressors are consistent with the nature of the Veteran's service. However, the examiner did not address the AOJ's failure to corroborate the stressors, prior inconsistent statements of the Veteran regarding stressors, or explain how the stressors were consistent with the Veteran's service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Additionally, the VA examiner failed to address the origin of the Veteran's diagnosed depressive disorder, the diagnosis of which is clearly reflected in the treatment records and which is encompassed in the Veteran's claim as well as the Board's March 2021 remand. See Stegall, supra. These deficiencies are suggestive that the VA examiner's review of the claims file was cursory at best. See Nieves-Rodriguez, supra. Compounding these deficiencies, in reply to the AOJ's request for clarification, the VA examiner explained that a stressor is necessary for a PTSD diagnosis and without the stressor a diagnosis of PTSD would not be warranted. See Addendum opinions dated May 17, 2021. The examiner's pointless reply merely articulates the threshold requirements for diagnosis and service connection of PTSD under 38 C.F.R. §§ 3.304(f), 4.125(a), and is responsive neither to the AOJ's request for clarification nor the Board's March 2021 remand. Given that the April 2021 VA nexus opinions and May 2021 addendums lack adequate supporting rationales, the Board finds the nexus opinions inadequate. See Barr, supra. Regarding the April 2021 VA examiner's negative opinions addressing the issue of secondary service connection for PTSD, the examiner stated that the Veteran did not report onset of PTSD symptoms related to his service-connected musculoskeletal disabilities and that the examiner "is not aware of scientific literature" indicating that the Veteran's musculoskeletal disabilities "could cause PTSD." However, the examiner did not explain why not reporting onset of PTSD symptoms related to the Veteran's musculoskeletal disabilities precludes a finding of secondary service connection. Additionally, the examiner did not address an article submitted by the Veteran in June 2019 suggesting a medical link between depression and anxiety and chronic disease. See VBMS entry with document type "Correspondence," received June 13, 2019. For the foregoing reasons, the Board finds the secondary service connection opinions inadequate. See Nieves-Rodriguez, supra. Accordingly, remand is necessary to obtain adequate opinions addressing the nature and etiology of the Veteran's psychiatric disorders. See Barr, supra; Stegall, supra. Duty to Assist If a claim for PTSD is based on a noncombat stressor, VA's duty to assist requires it to attempt to corroborate the veteran's alleged stressors or, if the veteran did not provide specific enough stressor information, to request more detailed information. Cohen v. Brown, 10 Vet. App. 128, 148-49 (1997); Zarycki v. Brown, 6 Vet. App. 91, 99-100 (1993). Here, the Board's March 2021 remand directed the AOJ to provide a VA examiner "with a list of verified in-service stressors" to consider in providing an etiology opinion for the Veteran's psychiatric disorder(s). See Board Decision and Remand dated March 9, 2021 at pgs. 18-19. However, the AOJ merely referred the VA examiner to a January 2017 VA memorandum reflecting the AOJ's determination that there is insufficient information regarding the Veteran's claimed stressors to submit to military records repositories for corroboration. See Examination Scheduling Request dated March 15, 2021; Memorandum for the Record dated January 3, 2017. While the Veteran has provided conflicting information describing claimed stressors, he has asserted, in part, that his stressors include witnessing two service members cut their wrists in 1988 during basic training, one of whom died. See, e.g., Statement in Support of Claim for PTSD received June 24, 2016; Notice of Disagreement received June 24, 2016. In September 2016 correspondence, the AOJ requested that the Veteran provide the names of the aforementioned service members; however, in his reply, the Veteran provided no names and stated that he was unable to "remember the specifics of everything" after the passage of 30 years. See Statement in Support of Claim received September 26, 2016. Thereafter, the AOJ issued its January 2017 memorandum, which, in part, incorrectly states that the Veteran "has not supplied any lay statements" and summarizes the Veteran's statements to date, concluding that "the available evidence is insufficient to establish a stressor" under VA guidelines. See Memorandum for the Record dated January 3, 2017. Notably, in his January 2017 appeal to the Board (VA Form 9), the Veteran asserted that he attempted to obtain stressor information from "Lakeland" AFB himself but was told the information could not be disclosed to him. See Appeal to Board of Veterans Appeals received January 25, 2017. Notwithstanding limitations reflected in VA claim development guidelines, it is reasonable to conclude that the Veteran's statements identifying the location, approximate date, and nature of the incidents underlying claimed stressors is sufficient to submit to records repositories to determine whether the self-inflicted injuries and death of a service member occurred at a specific Air Force facility in 1988 under circumstances the Veteran has described. Therefore, the Board finds that AOJ efforts to confirm the alleged stressor event are incomplete, and in accordance with VA's duty to assist, the AOJ should undertake to obtain any outstanding official records which may assist in corroborating the Veteran's assertions, including submitting the stressor information to appropriate records repositories in an attempt to corroborate the Veteran's claimed stressors. The Board notes that the Air Force facility where the alleged suicide attempts occurred has been variously identified in the record as, e.g., "Lackman" and "Lakeland." Although the Veteran's service records reflect his presence at Lackland Air Force Base in Texas, on remand the AOJ must clarify, with the Veteran's assistance, the specific Air Force facility where the claimed stressors occurred prior to proceeding with stressor verification efforts. The Board emphasizes that the Veteran maintains the ultimate burden to establish entitlement to service connection. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Moreover, VA's duty to assist is a two-way-street; if the Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran, and, with his assistance, specifically identify the Air Force facility where the claimed PTSD stressors occurred in 1988. If any additional stressor details are needed from the Veteran, request them from him at this time. Allow a reasonable time for response from the Veteran. 3. Thereafter, attempt to verify the Veteran's claimed stressors by submitting the information, including the Veteran's assertion that he witnessed two attempted suicides, one of which resulted in a service member's death, at an Air Force facility in 1988, and the correct name of the Air Force facility, to the appropriate agencies pursuant to procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. The result of the attempts to corroborate the Veteran's stressors should be recorded in detail in a memorandum to be associated with the electronic claims file. The Veteran and his representative should be notified of VA's inability to obtain the requested evidence pursuant to 38 C.F.R. § 3.159(e). 4. Then, schedule the Veteran for both VA PTSD and mental disorders examinations by an appropriately qualified VA psychiatrist or psychologist to determine the nature and etiology of currently diagnosed psychiatric disorders, to include the claimed PTSD. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Specifically determine whether the Veteran meets the criteria for a diagnosis of PTSD. (b) Identify any other currently diagnosed psychiatric disorders, to include depressive disorder, that have been present at any point during the appeal period, which commenced in January 2016. (c) If PTSD is currently demonstrated, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran's PTSD had an onset during the Veteran's active service or was caused by his active service, to include the claimed in-service stressors. *The examiner shall identify the specific stressor(s) underlying the diagnosis and comment upon the link between current symptomatology and the Veteran's claimed stressor(s). In so doing, the examiner shall determine whether the claimed stressor(s) has been verified. *If the examiner determines that the Veteran does not have PTSD, the examiner should address the PTSD diagnoses reflected in the record and discuss whether the new diagnosis represents progression of the prior diagnoses, correction of an error in prior diagnoses, or development of a new and separate condition. 38 C.F.R. § 4.125(b). (d) For any other diagnosed psychiatric disorder, provide an opinion as to whether such diagnosed psychiatric disorder at least as likely as not (50 percent or higher probability) had an onset during the Veteran's active service or was caused by his active service, manifested within one year after service separation, or are otherwise etiologically related to service. (e) If the answer to (d) is negative, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran's currently diagnosed psychiatric disorder(s), including PTSD, was CAUSED or AGGRAVATED by the service-connected right knee arthritis, right knee arthritis with limitation of extension, and/or left knee osteoarthritis. *Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). *To ensure that the correct legal standard is applied, which is essential for adjudication of this claim, each opinion under this section (d) MUST BE STATED IN TERMS OF whether the disorder was CAUSED or AGGRAVATED by the service-connected disorder. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: *Article entitled "Patient Experiences of Depression and Anxiety with Chronic Disease: A Systematic Review and Qualitative Meta-Synthesis" (see VBMS entry with document type "Correspondence," receipt date 06/13/2019). *Veteran's statement describing claimed in-service stressor (see VBMS entry with document type "VA 21-0781, Statement in Support of Claim for PTSD," receipt date 06/24/2016); *Veteran's statement describing claimed in-service stressor (see VBMS entry with document type "NOD," receipt date 06/24/2016); *Veteran's statement describing claimed in-service stressor (see VBMS entry with document type "VA 21-4138 Statement in Support of Claim," receipt date 02/22/2016); *VA psychology note dated January 12, 2017 reflecting diagnosis of depressive disorder (see VBMS entry with document type "CAPRI," receipt date 06/13/2017, at PDF page 7 of 11); and *VA psychology evaluation by VA psychologist S.H.S., Ph.D. dated March 22, 2016 reflecting stressor information and a "suggested" diagnosis of PTSD and diagnosis of an anxiety disorder with the added notation "likely PTSD" (see VBMS entry with document type "CAPRI," receipt date 09/10/2016, at PDF pages 14-16 of 64). The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions proffered. 5. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 6. Then, readjudicate the remanded claim. A. Yaffe Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, Associate 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.