Citation Nr: 22017177 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-41 012 DATE: March 24, 2022 REMANDED Whether the severance of service connection for an anxiety disorder not otherwise specified was proper. REASONS FOR REMAND The Veteran served on active duty from June 1972 to June 1974. This matter is on appeal from a July 2016 decision. In July 2020, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). The Board denied this appeal in a September 2020 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in October 2021 granting a September 2021 Joint Motion for Remand (JMR). In February 2022, the Board sent the Veteran a letter informing him that the VLJ who conducted the July 2020 Board hearing had become unavailable to issue a final decision in his appeal, and, as a result, that he had the right to an additional hearing before another VLJ, who would issue the final decision in his appeal. In March 2022, the Board received a response from the Veteran, through his attorney representative, stating that he did not wish to appear at another Board hearing. See 38 C.F.R. § 20.707. Whether the severance of service connection for an anxiety disorder not otherwise specified was proper. The Board in this case previously denied the appeal in its September 2020 decision. The Board found that the severance of service connection was proper. The Board observed that the original award of service connection was clear and unmistakable error because it was based on a misreading of a VA examiner's opinion. Specifically, a July 2012 VA examiner had found that the Veteran did not meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD), but was diagnosed with anxiety disorder not otherwise specified; alcohol abuse in remission; and cocaine abuse in remission. This VA examiner reviewed the Veteran's account of military sexual trauma (MST) during service, but concluded that this stressor did not support a diagnosis of PTSD because the Veteran did not meet the full criterion for a diagnosis of PTSD. The VA examiner also opined that the currently diagnosed anxiety disorder not otherwise specified was less likely related the result of his self-reported MST. The Board pointed out that the Veteran underwent a second VA examination in April 2013, which diagnosed a depressive disorder inextricably intertwined with the anxiety disorder, but the examiner provided no etiological opinion regarding either diagnosis. The Board found that the severance was proper as the RO misunderstood the July 2012 VA examiner's opinion as a positive opinion when, in fact, it was a negative opinion. The Board otherwise found that there was no evidence establishing a nexus between the Veteran's anxiety disorder and his reported MST. With regard to the occurrence of the in-service event, the Board cited 38 C.F.R. § 3.304(f)(5) regarding the criteria to establish service connection for PTSD based on a personal assault stressor. In the instant Veteran's case, the Board found that there was no corroborating evidence that the Veteran, in fact, experienced an MST. The Board relied on the service personnel records, which included a citation for unexcused absence in September 1973 and a willful disobedience of a lawful order in May 1974. The Board found that such actions only included non-judicial punishments of a reprimand and a deduction of pay of 20 dollars for one month. The Board determined that these records did include any other markers of a personal assault, particularly contemporary to the reported assault. On appeal at the Court, the parties to the JMR determined that remand was needed because the Board erred by applying 38 C.F.R. § 3.304(f) in suggesting that corroboration of a stressor, the Veteran's claimed MST, was necessary to support the award of service connection for anxiety disorder. Rather, the parties pointed out, the Veteran was granted service connection for anxiety disorder, so the provisions of 38 C.F.R. § 3.304(f), governing claims of service connection for PTSD, did not apply in his case. Instead, the Veteran's case was governed by 38 C.F.R. § 3.303. Therefore, the parties agreed that the question before the Board was not whether the Veteran had a corroborated stressor pursuant to § 3.304(f), but rather whether the evidence of record, including lay evidence, supported the occurrence of an in-service event and, if so, whether any currently diagnosed psychiatric disability was related to that event. At present, the Board finds that remand for a new VA examination is warranted. As found in the Board's prior decision, the July 2012 VA examiner's opinion was negative, and there is otherwise no competent evidence of a nexus between service and anxiety disorder in this case. This remains true even assuming the occurrence of the claimed MST event. Since that time, the Veteran's VA medical records reflect diagnoses of PTSD. The basis for the diagnoses is unclear. They document the Veteran's report of the MST, but do not provide an express nexus opinion. They also do not address the likelihood that the event occurred. This is significant because the only evidence currently supporting the occurrence of the MST is the Veteran's own account of the event. To this end, the reliability of the Veteran's account is somewhat undermined by the factors identified in the Board's prior decision, but also other evidence in the file indicating that the Veteran may not be an accurate historian. In either event, the Court faulted the Board for relying on 38 C.F.R. § 3.304(f) as to the occurrence of the claimed event. Nonetheless, the Court has held that a credibility determination by the Board can benefit from information obtained in a medical opinion. Miller v. Wilkie, 32 Vet. App. 249, 259-60 (2020). The examiner can better inform the Board's understanding of the medical feasibility of the veteran's lay statements. Id. If an examiner explains that a veteran's assertions are generally inconsistent with medical knowledge or implausible, the Board can weigh that when addressing the veteran's credibility. Id. Or an examiner may explain that a veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop. Id. at 259. Here, the Board finds that a VA examination opinion on the would greatly aid in determining the credibility of Veteran's statements regarding whether the claimed in-service event occurred. To be clear, the evidentiary record here is insufficient to resolve the complex factual and legal questions raised by the severance of service connection. In fact, the evidentiary record is inadequate to reach any conclusions, whether positive or negative, on these questions at present. There is not conflicting evidence the probative value of which reasonable minds could disagree. There is simply an absence of evidence. A new VA opinion is therefore warranted. See Herbert v. McDonald, 791 F.3d 1364, 1367 (Fed. Cir. 2015) (VA "has an affirmative duty to gather the evidence necessary to render an informed decision on the claim, even if that means gathering and developing negative evidence, provided he does so 'in an impartial, unbiased, and neutral manner.'"). The matters are REMANDED for the following action: Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric diagnosis. The examiner is asked to address the following: (a.) Whether the evidence of record, including the Veteran's lay statements, and the service records, corroborate the claim that a personal assault occurred in service. If the examiner finds that the evidence indicates that a personal assault did not occur, the examiner must explain why the Veteran's own account of the event is not found sufficient to support a conclusion that the assault occurred. (b.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is related to a verified in-service stressor. (c.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is related to an in-service injury, event, or disease. In answering all questions, it is imperative that the examiner articulate the reasons underpinning every conclusion. The examiner should (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.