Citation Nr: 18141646 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 10-29 918 DATE: October 11, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active service form August 1984 to June 1987. Regrettably, a remand is necessary in this case to ensure that due process is followed and 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; 38 C.F.R. § 3.159. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2010 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction of the Veteran’s claims file is currently at the RO in St. Petersburg, Florida. This case has a long and complex procedural history. Most recently the issue, as stated above, was remanded in April 2017. At that time, the Board remanded the case because there had not been substantial compliance with prior remand directives of July 2016. See Stegall v, West, 11 Vet. App. 268, 271 (1998) (noting that when there is not substantial compliance with the Board’s remand directives, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board observes that a psychological examination was conducted pursuant to the Board’s April 2017 remand directives; however, the examination is rife with ambiguity. Moreover, it is unclear whether the examiner’s findings were communicated to either the Veteran or his representative. The examiner who drafted the October 2017 psychological opinion indicated that she obtained acceptable clinical evidence to derive her findings from both an “in person” examination and review of the Veteran’s claims file, which the Board noted as voluminous in the April 2017 remand. Nevertheless, this examiner’s negative nexus opinion included a rationale to the effect that “there is insufficient evidence to provide an opinion and it is recommend[ed] that the Veteran present [himself] for an in-person examination.” See October 2017 examination report, pp. 1-2. The Board underscores the contradiction, or at best ambiguity, inherent in the examiner’s usage of the term “in person” therein. Put another way, an in-person examination requires the presence of an examinee—otherwise it constitutes an opinion based upon findings derived from extant evidence. Furthermore, the Board observes that a review of the evidence of record does not include documentation and/or memorialization concerning the need for the Veteran to “present himself for an in-person examination.” An October 4, 2017 letter only indicated that that the Veteran would “soon” be advised of the date, time, and place of examination by a private facility. However, the record of evidence is bereft of any written and/or telephonic communication from this private facility to either the Veteran or his representative as to the scheduled date, time, and place of examination. The matter is REMANDED for the following action: 1. Contact the Veteran and her representative and request that they provide or identify and authorize the recovery of any private treatment records. If obtained, associate these treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 2. Request outstanding records of VA outpatient treatment, if any, for the Veteran and associate them with the claims file. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for an examination with a VA psychologist, or than those who prepared earlier opinions. The time, date, and place of examination must be communicated to both the Veteran and his representative, telephonically and through a letter. The examiner must review the entire claims file, including a copy of this remand. Such review must be indicated in the body of the examination report. After review of the claims file and an appropriate clinical examination of the Veteran, the examiner is asked to respond to the following inquiries: a. What, if any, diagnostic impression is apposite or best approximates the symptomatology of the Veteran’s acquired psychiatric disorder? AND b. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired disorder, if any, began during or was otherwise caused by his military service. A complete rationale should be provided for any opinion expressed. The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. 4. Upon completion of the above review of the expanded record, readjudicate the Veteran’s claim. If any determination remains averse to the Veteran, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel