Citation Nr: 18151515 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 06-18 386 DATE: November 19, 2018 REMANDED Entitlement to service connection for a psychiatric disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from November 1977 to March 1978 and January 2003 to September 2004, to include service in the Army National Guard and Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2005 rating decision issued by the VA Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board finds that additional development is required before the appeal is decided. The Veteran has contended that he has a psychiatric disability that is related to his active service, or, alternatively, secondary to his service-connected disabilities. Specifically, he asserted that his psychiatric disability worsened during service. Service treatment records are silent for any treatment for, or diagnosis of a psychiatric disability. However, at his January 2003 Army Reserve examination, the Veteran reported nervous trouble, anxiety, panic attacks, frequent trouble sleeping, and depression or excessive worry. In October 2003, a private psychiatrist diagnosed major depression and alcohol dependence. At his December 2003 Medical Board examination, he indicated that he had received counseling and endorsed nervous trouble, frequent trouble sleeping, and depression or excessive worry. A review of post-service treatment records revealed that the Veteran was diagnosed with anxiety disorder in 2008. The Veteran was afforded a VA psychiatric examination in April 2005. The Veteran reported a history of alcoholism and that he was undergoing private psychiatric treatment. The examiner diagnosed alcohol dependence and adjustment reaction with mixed emotional features. Pursuant to a February 2011 Board remand, the Veteran was provided an additional VA psychiatric examination in June 2011. He reported witnessing death of others during his active service. The Veteran was diagnosed with depressive disorder and alcohol abuse. The examiner opined that the Veteran’s psychiatric disability was not caused by or a result of his military service. In September 2017, the Veteran was afforded a new VA psychiatric examination in accordance with a September 2012 Board remand directing the examiner to provide a secondary service connection opinion. The examiner diagnosed unspecified schizophrenia spectrum and other psychotic disorder and unspecified alcohol-related disorder. She noted that the clinical diagnosis was unspecified because the Veteran’s symptoms did not fulfill criteria for any DSM-V specific diagnosis and the mental health history provided by the Veteran was not reliable. She stated that schizophrenia among other disorders were associated with alcohol use disorder; and several anxiety and depressive disorders may relate to alcohol use disorder. On a direct basis, the September 2017 examiner opined that the Veteran’s psychiatric disability was less likely than not incurred in or caused by the Veteran’s active service. She stated that the Veteran presented symptoms since childhood and adolescence, i.e. unable to obtain satisfactory grades, absenteeism from class to go to the beach with friends, tried marijuana and started smoking cigarettes, reported restlessness and behavior problems before active military service. She explained, however, that the Veteran’s symptoms exacerbate with stressors, e.g. relationship with partner and adult children, physical conditions, and pain. On a secondary basis, the September 2017 examiner opined that the Veteran’s psychiatric disability was less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. She noted that the Veteran’s psychological symptoms were present before his active service and that it was not until 2003 that he started psychiatric treatment. She stated that the Veteran’s current symptoms were consistent with the natural progression of illness and poor coping skills to manage stressors. With regard to aggravation, the September 2017 VA examiner determined that a baseline could not be established because the Veteran provided inconsistent information during the interview. She stated that while the medical evidence reported a diagnosis for major depressive disorder, the Veteran currently did not meet the full criteria for depression. She observed that the evidence showed a history of domestic violence, alcohol consumption, behavior problems, and different stressors related to family conflicts. Although the Veteran denied a history of mental health during childhood, the examiner concluded that the Veteran manifested academic and behavior problems, adolescent substance use, and living in a stressful environment as a child. Regardless of an established baseline, the examiner concluded that the Veteran’s psychiatric disability was not at least as likely as not aggravated beyond its natural progression by his service-connected disabilities. She explained that the Veteran did not meet the criteria for a major depressive disorder. She stated that the Veteran’s symptoms were a normal progression of a schizophrenia spectrum and other psychotic disorders since childhood, but not previously diagnosed. She concluded that while the Veteran’s physical conditions contributed to his mental state, they were not responsible for onset nor aggravation beyond natural progression. The Board finds that the September 2017 VA examiner did not address the Veteran’s report that he witnessed the death of others during service and his post-service diagnosis for anxiety disorder. Additionally, the Board finds that remand is necessary to reconcile the Veteran’s pre-service mental health history with the October 2003 diagnosis for major depressive disorder and the December 2003 psychiatric symptoms present during his second period of active service. As such, the Veteran should be provided a new VA examination to determine the nature and etiology of any currently present psychiatric disability. Regarding the TDIU issue, the Board finds that the development conducted did not adequately comply the September 2017 Board remand directing the RO to submit the TDU claim to the Director of VA’s Compensation Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b), where the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by a psychiatrist or psychologist with sufficient expertise to determine the nature and etiology of any currently present psychiatric disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, or proximate thereto. Then, for each psychiatric disability identified, the examiner should state whether the disability clearly and unmistakably existed prior to the Veteran’s active service. In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. For any psychiatric disability found to clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether that disability was clearly and unmistakably NOT aggravated by service. The examiner should specifically comment on the Veteran’s lay assertion that he witnessed death of others during his second period of active service (January 2003 to September 2004). Additionally, the examiner should specifically address the October 2003 diagnosis for major depression during service and the 2008 post-service diagnosis for anxiety disorder. For any psychiatric disability that did NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such psychiatric disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on the Veteran’s lay assertion that he witnessed death of others during his second period of active service (January 2003 to September 2004). Additionally, the examiner should specifically address the October 2003 diagnosis for major depression during service and the 2008 post-service diagnosis for anxiety disorder. Additionally, in forming the requested opinions, the examiner should consider that the Veteran’s lay assertions alone are not a sufficient basis to determine that he clearly and unmistakably had a psychiatric disability that pre-existed entrance to active service. Further, the lack of medical treatment or diagnosis of a psychiatric disability during service alone is not a sufficient basis to determine that a psychiatric disability was clearly and unmistakably not aggravated during active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present psychiatric disability was caused or chronically worsened by the Veteran’s service-connected disabilities. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, refer the issue of TDIU for consideration on an extraschedular basis pursuant to of 38 C.F.R. § 4.16(b). 5. Then, readjudicate the appeal. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel