Citation Nr: 18157161 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 11-14 693 DATE: December 12, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) is remanded. INTRODUCTION The Veteran served on active duty from August 1976 to September 1979. In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When this case was most recently before the Board in May 2017, the above-noted issue was remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran’s claim is decided. Initially, the Board notes that 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). In June 2017 the Veteran underwent a terse VA examination to assess his claimed psychiatric disorder. During his examinations, the examiner found insufficient evidence to warrant a diagnosis of any mental disorder; however, the examiner did not acknowledge or discuss the Veteran’s outpatient treatment records from the San Antonio VAMC or McAllen Outpatient Clinic. These records show the Veteran has been diagnosed with an adjustment disorder with mixed anxiety, depressed mood, and alcohol abuse. Further, the Veteran has also been diagnosed with paranoid schizophrenia. In the course of the May 2017 remand, the Board specifically directed the examiner to “identify all acquired psychiatric disorders that have been present during the period of the claim,” and provide an opinion as to the etiology of those disorders. The Court of Appeals for Veterans Claims has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The June 2017 VA examiner wholly failed to acknowledge or discuss the above-noted diagnoses, and state why he believes those diagnoses are erroneous. Based on the foregoing insufficiencies, a remand is required in order to obtain an adequate examination and medical opinion. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s remaining issue on appeal, to specifically include all treatment records related to the claimed disability from the San Antonio VAMC, McAllen VA Outpatient Clinic, as well as the VA mental health clinic in Mercedes. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. The Veteran also should be afforded an examination by a VA psychiatrist or psychologist, who has not previously examined this Veteran, to determine the etiology of all acquired psychiatric disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the review of the Veteran’s pertinent history and the examination results, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim, to specifically include an adjustment disorder with mixed anxiety, depressed mood, and alcohol abuse, as well as paranoid schizophrenia. A diagnosis of PTSD due at least in part to military sexual trauma or personal assault during active service should be confirmed or ruled out. If the examiner determines PTSD has not been present during the period of the claim, he or she should explain why a diagnosis of PTSD is not warranted. If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis. With respect to each acquired psychiatric disorder, other than PTSD, that has been present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service. If the examiner does not believe the diagnoses of adjustment disorder with mixed anxiety, depressed mood, and alcohol abuse or paranoid schizophrenia are warranted, the examiner should state why he or she believes these diagnoses are erroneous. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements and assume such statements are credible for purposes of the requested opinions. Specifically, in forming an opinion, the examiner should include consideration of the Veteran’s statements concerning his exposure to a military sexual trauma or personal assault, as well as his absence without leave (AWOL) in service. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page)   3. Finally, undertake any other indicated development and then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel