Citation Nr: 1802983 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-12 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Peden, Associate Counsel INTRODUCTION The Veteran had active service from June 1968 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of the Augusta, Maine Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied reopening the claim for an acquired psychiatric disorder. In its May 2017 decision, the Board reopened and remanded the appeal for further development. In his substantive appeal, the appellant requested a Board videoconference hearing. See 38 C.F.R. § 20.704 (b) (2017). He withdrew his hearing requests in writing via a February 2017 statement to VA. Accordingly, the Board finds that the Veteran's request for a hearing on the issues on appeal has been withdrawn. 38 C.F.R. § 20.704 (d) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, another remand is necessary because the medical opinion obtained pursuant to the Board's May 2017 remand is not adequate. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board "confers on the veteran as a matter of law, the right to compliance with the remand orders" and that the Board errs when it fails to ensure compliance with the terms of the remand). Specifically, in the May 2017 remand, the Board requested that the Veteran be afforded a VA examination and that the examiner provide an opinion with a complete rationale as to whether the Veteran has a psychiatric disability, to include PTSD, anxiety, and depression that manifested during or as a result of active military service. Medical records show a diagnosis of persistent depressive disorder. The Veteran was afforded a VA examination in May 2017. The examiner opined that if the stressor alleged by the Veteran was factual it would meet DSM criteria for PTSD. He also confusingly opined the claimed stressor was related to military service and that it was unclear to what extent the alleged stressor was foundational to the Veteran's mental disorder. Finally, the examiner stated it was unclear if the diagnosed disorder had its clinical onset during the time of service and to render an opinion would rely upon speculation. Unfortunately, the Board finds the examiner's report inadequate as he failed to give a nexus opinion consistent with the Veteran's diagnosed psychiatric disorder; thus, a new examination is required. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, a December 2017 letter written by a VA physician who has continually treated the Veteran asserts the Veteran displays symptoms consistent with the diagnosis of PTSD. On remand, the examiner should consider this evidence in rendering the requested opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to his claims and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record. 2. Upon receipt of all additional records, if any, schedule the Veteran for a VA examination by an examiner with appropriate expertise, but preferably not by the examiner who conducted the May 2017 examination, to determine the nature, onset, and etiology of the Veteran's psychiatric disability. The entire record, including a complete copy of this Remand, must be made available to the examiner for review, and the examiner must indicate in the examination report that the record was reviewed in conjunction with the examination. All indicated tests and studies should be completed, and the examiner should take a complete history from the Veteran regarding his claimed psychological problems. Following completion of the examination and review of the claims file, the following must be addressed, as appropriate: (a) Diagnose all acquired psychiatric disorders, including but not limited to respective diagnoses of PTSD and depressive disorder. (b) For each psychiatric disorder diagnosed, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) related to the Veteran's reported incident involving a knife during service, the Veteran's reported stressor of not serving in Vietnam, or to his military service otherwise. The examiner should consider the December 2017 letter of record written by a VA physician which asserts the Veteran displays symptoms consistent with the diagnosis of PTSD. A clear and full rationale for any opinion offered should be provided by the examiner in the report. If an opinion cannot be reached without speculation, the examiner still must provide a clear and full rationale. 3. To help avoid an additional remand, the RO must ensure that all requested actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, the RO should take the appropriate corrective action, to include scheduling the Veteran for another VA examination if appropriate. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, readjudicate the claim on appeal. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and provided an opportunity to respond. The claim should be returned to the Board as warranted. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records may impact the decision made. He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).