Citation Nr: 18155629 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 12-31 682 DATE: December 4, 2018 REMANDED Entitlement to an effective date prior to October 4, 2001, for the award of service connection for a psychiatric disability, to include depressive disorder with agoraphobia, panic attacks, and sleep disorder. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1974 to August 1977. In March 2015, the Veteran was afforded a hearing at the Central Office before the undersigned. A transcript of that hearing has been associated with the record. In a May 2015 decision, the Board denied the appeal. The Veteran appealed. In a June 2016 order, the Court of Appeals for Veterans’ Claims (Court) upheld a joint motion of the parties and remanded the appeal back to the Board of Veterans’ Appeal (Board) for action consistent with the joint motion. In an August 2016 decision, the Board again denied the appeal. The Veteran again appealed. In a February 2018 memorandum decision, the Court again vacated and remanded the appeal back to the Board for action consistent with the decision. In June 2018, the Veteran’s representative waived agency of original jurisdiction (AOJ) review of the additional evidence received by VA since the issuance of the April 2014 supplemental statement of the case. See 38 C.F.R. § 20.1304(c). The Earlier Effective Date Claim A thorough review of the February 2018 memorandum decision reveals that the Veterans Court believes that a fair adjudication of the current appeal cannot be afforded the Veteran without obtaining a retroactive medical opinion as to when the Veteran was first diagnosed with an acquired psychiatric disorder. The Board attempts to avoid, when possible, such retroactive medical opinions due to the speculative nature of such assessments. However, the Court’s order can not be unheeded. In this regard, in October 2018 the Veteran’s representative filed with the Board a private retroactive medical opinion in which it was opined that the Veteran was first diagnosed with an acquired psychiatric disorder sometime between 1979 and 1987. However, the Board finds the private opinion, which places the first diagnosis somewhere within an 8-year window, to speculative too rely on when adjudicating the current appeal. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Therefore, the Board finds that it has no other option but to remand the appeal to obtain a better retroactive medical opinion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). In providing the opinion, the examiner should keep in mind the following language in the Court’s February 2018 memorandum decision: . . . although the appellant was not diagnosed with a disability for which service connection may be granted prior to 2001, any medical practitioners who evaluated him prior to October 2001 would not have had access to his MVRP [(service personnel record)]-related medical records. R. at 8. Accordingly, their opinions and examinations, which do not rest on correct facts, are inadequate to determine ‘the date entitlement arose’ under §3.156(c)(3). The appeal is REMANDED for the following actions: 1. Invite the Veteran and his representative to provide the Veterans' Administration (VA) with any other evidence and/or argument they may have in support of the claim for an earlier effective date for service connection for an acquired psychiatric disorder. 2. Thereafter, obtain a psychiatric opinion from a suitably-qualified medical professional to obtain a retroactive medical opinion as when the Veteran was first diagnosed with an acquired psychiatric disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. If possible, but not required, the examiner should review the Court’s February 2018 memorandum decision. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following. a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran was first had an acquired psychiatric disorder prior to 2001. b. If the record shows that the Veteran was first diagnosed with an acquired psychiatric disorder before 2001, provide an opinion as to the approximate date (i.e., within a 3-month window) the record showed he had such a diagnosis. This is a complex issue from the Veteran’s Court. In providing answers to the above questions, the examiner should also consider the Court’s holding that all medical opinions found in the record that did not include consideration of the MVRP and related medical records received in October 2001 lacks credibility. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner should consider and discuss the private retroactive medical opinion received by the Board in October 2018. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel