Citation Nr: 22007366 Decision Date: 02/09/22 Archive Date: 02/09/22 DOCKET NO. 07-33 424 DATE: February 9, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from April 1957 to April 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs' (VA) Veterans Benefits Administration (VBA). This appeal has been before the Board on several occasions. More recently, in September 2017, the Board denied the claim in a September 2017 decision. In January 2019, the U.S. Court of Appeals for Veterans Claims granted a joint motion for remand (JMR), and vacated and remanded this issue. In July 2019 and July 2021, the Board remanded the claim to VBA for additional development, and it has since returned to the Board. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim for PTSD. The Board notes that the Veteran's service treatment records have been presumed destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. In cases such as this where a Veteran's service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant's favor. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Veteran is seeking service connection for an acquired psychiatric disorder, claimed as PTSD. In support of his claim, he alleged that he had multiple in-service stressors. Among his alleged in-service stressors, the Veteran reported having witnessed CPL [REDACTED] commit suicide. See 9/17/12 VA 21-0781, Statement in Support of Claim for Service Connection for PTSD. While the Veteran was initially unable to provide CPL [REDACTED] full name or service number, the Veteran identified his unit, and noted that the incident occurred between 1958 and 1959 in Germany. Numerous attempts have been made by VBA to provide evidence to corroborate the Veteran's stressor statements, including CPL [REDACTED] suicide, via requests for records from NPRC, the then-existing Joint Services Records Research Center (JSRRC), and Defense Personnel Records Information Retrieval System (DPRIS). Those searches proved unsuccessful, as they yielded negative results due to the lack of service numbers, full names, and other identifiable information. However, VBA attempted an additional search that resulted in favorable information. In August 2015, the then called Appeals Management Center (AMC) (now referred to as the Office of Administrative Review) noted, "AN INTERNET SEARCH OF COLD WAR CASUALTIES SHOWS THAT CPT (OR POSSIBLY (CPL) (first name omitted) [REDACTED] OF THE 33RD TANK BATTALION COMMITTED SUICIDE IN 1958 WITH A 45 CALIBER WEAPON. IT IS POSSIBLE THAT THIS IS THE SAME PERSON WHOSE SUICIDE THE VETERAN CLAIMS TO HAVE WITNESSED. WITH THIS INFORMATION, PLEASE ASK NPRC FOR THE DECEASED PERSONNEL FILE FOR (first name omitted) [REDACTED]." In December 2015, the Veteran submitted a VA 21-4138 affirming that he was in the 33rd Tank Battalion with the identified individual in the August 2015 AMC report. Given the August 2015 AMC notation, the Veteran's statements in December 2015, and taking into consideration that the Veteran's service treatment records are presumed destroyed, in the July 2021 Board remand, the Board found that the Veteran's claimed in-service stressor pertaining to CPL [REDACTED] suicide was sufficiently verified pursuant to 38 C.F.R. § 3.304(f). As such, the July 2021 Board remand directed VBA to obtain a VA examination and opinion in order to ascertain the etiology and nature of the Veteran's PTSD, to include specifically whether the in-service stressor is the basis for a diagnosis of PTSD was warranted. In compliance with the July 2021 Board remand directives, a VA examination was conducted in October 2021. However, the October 2021 VA examiner determined that "[t]he diagnosis of PTSD or any psychiatric condition other than neurocognitive disorder could not be determined given this claimant's inability to competently participate in a MH [mental health] interview. The presence of PTSD or any other disorder was not possible without relying almost exclusively on daughter's account of symptoms or medical records." See October 2021 medical Opinion Disability Benefits Questionnaire (DBQ). The examiner diagnosed unspecified neurocognitive disorder and determined that the Veteran's cognitive disorder was less likely than not incurred or caused by an in-service injury, event, or illness. The examination reports also noted Parkinson's disease and multiple transient ischemic attacks (TIAs). However, the examiner did not consider whether the Veteran's previous diagnoses of PTSD and depression during the appeal period were related to his service. The medical evidence shows that the Veteran has diagnoses of PTSD and depression during the appeal period. See, e.g., December 2004 through January 2006 VA treatment records showing a diagnosis of "PTSD from MST [military sexual trauma] and explosion"; April 2012 private treatment record showing a diagnosis of chronic PTSD and chronic major depression; May 2015 VA treatment record showing a diagnosis of depression/ PTSD. As these diagnoses were not considered by the VA examiner, the Board finds that the October 2021 medical opinion is inadequate for adjudication purposes. In light of the Veteran's inability to participate in a mental health interview due to his severe non service-connected unspecified neurocognitive disorder and other non service-connected conditions, a new VA medical opinion based on file review is warranted to consider whether the Veteran's diagnosed PTSD and depression are related to his service. See October 2021 DBQ. The examiner must acknowledge and consider the Veteran's verified in-service stressor pertaining to CPL [REDACTED] suicide. The matters are REMANDED for the following action: Forward the claims file for an opinion based on file review. Following review of the file (and the scheduling of an additional examination, if deemed necessary), an appropriate clinician must address the following: (a.) Please state whether it is a least as likely as not that the Veteran's PTSD, depression, and/or any other acquired psychiatric condition diagnosed during the appeal period, had its onset in or is otherwise related to service. (b.) Please identify the particular stressor(s) upon which the Veteran's PTSD is based. (c.) Please comment, to the best of your ability, whether the prodromal period for any such disorder as likely as not had its onset during the Veteran's period of active service or within one year following discharge. For the purpose of providing the opinion(s) requested in parts (a) through (c), please acknowledge that the Veteran's claimed in-service stressor pertaining to CPL [REDACTED] suicide has been sufficiently verified. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide fully articulated medical rationales for each opinion. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.