Citation Nr: A25050488 Decision Date: 06/09/25 Archive Date: 06/09/25 DOCKET NO. 240820-464322 DATE: June 9, 2025 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD), to include depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1994 to April 1995. The Veteran also had service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2024 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The July 2024 rating decision found that new and relevant evidence had been received to readjudicate the claim of service connection for PTSD. This is a favorable finding by the agency of original jurisdiction (AOJ) and the Board will proceed to the address the claim on the merits. See 38?U.S.C. § 5104A; 38?C.F.R. § 3.104(c). In the August 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of July 10, 2024-the date of the rating decision on appeal. See 38 C.F.R. § 20.301. If the Veteran submitted evidence that was added to the record after July 10, 2024, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501. Entitlement to service connection for PTSD to include depression is remanded. The Veteran contends that he is entitled to service connection for PTSD. At the June 2024 VA examination, the Veteran identified three stressors: (1) in 1994, during a rappelling training exercise two members going up the rope fell on top of him causing injuries; (2) while serving on the National Guard, the Veteran responded to a bad car accident where the victim was paralyzed, he was the lead medic; and (3) in 2010, while not on active duty service, the Veteran took part in convoys and saw severely injured individuals. See C&P Exam received 6/04/2024 at pages 6-7. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The following provisions apply to claims for service connection of posttraumatic stress disorder diagnosed during service or based on the specified type of claimed stressor: (1) If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (2) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity"' means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho- physiological state of fear, helplessness, or horror. (4) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (5) If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304. The Board finds that there has been pre-decisional duty to assist errors and therefore a remand to correct those errors is warranted. Under the AMA, the Board is responsible for identifying any duty to assist errors made by the AOJ prior to the issuance of the rating decision on appeal. 38 C.F.R. § 3.159(c). Once a pre-decisional duty to assist error is identified, the Board must remand to the AOJ for corrective action. 38 C.F.R. § 20.802(a). In the July 2024 rating decision, the AOJ stated that the Veteran did not submit specific details in a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, of the stressful incidents in service that he believed caused his PTSD. A review of the record shows that in May 2021, the Veteran submitted the form with an attached page that related the 1994 event while he was on active duty. Accordingly, the Board finds that the lack of development, specifically the RO's duty to help precure credible supporting evidence that the in-service stressor occurred, was a pre-decisional duty to assist error. 38 C.F.R. § 20.802(a). Relatedly, the Board is finding that credible supporting evidence is required, and the Veteran's lay statements alone are insufficient since he was not engaged in combat and the claimed stressor is not combat-related. 38 C.F.R. § 3.304(f). Further, the Board finds that there was a pre-decisional duty to assist error with the June 2024 VA examiner not providing a medical opinion on whether the Veteran's PTSD was at least as likely as not related to service. Instead, the June 2024 VA examiner only completed the DBQ. Since a medical opinion was needed to decide this case, the Board finds that there was a pre-decisional duty to assist error in the VA examiner not providing one. 38 C.F.R. § 3.159(c)(4). The Board observes that the Veteran has submitted a private DBQ and medical opinion, however, since the Board has identified pre-decisional duty to assist errors in the record, to include stressor development (an element of service connection for PTSD), a remand is required. 38 C.F.R. § 20.802(a). This matter is REMANDED for the following actions: 1. Undertake appropriate development regarding verification of the Veteran's stressor incident, specifically the Veteran submitted a May 2021 VA 21-0781 where he listed the date of the incident as November 1, 1994 and his unit location as Ft Leonard Wood, MO, USA, Victory tower obstacle course. See VA 21-0781, Statement in Support of Claim for PTSD received 5/12/2021 at page 4. After the appropriate development, associate with the claims file a VA memorandum detailing the findings. 2. After #1, obtain a medical opinion from the June 2024 VA examiner, Dr. A.F.J., psychologist, to (1) explain how the diagnostic criteria for PTSD were met; and (2) opine whether it is at least as likely as not related to a verified in-service stressor. If Dr. A.F.J. is unavailable, the RO is directed to schedule the Veteran for an in-person psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain: (1) how the diagnostic criteria are met; and (2) opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to a verified in-service stressor. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon 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.