Citation Nr: 18120249 Decision Date: 07/20/18 Archive Date: 07/20/18 DOCKET NO. 07-21 502 DATE: July 20, 2018 REMANDED Entitlement to service connection for back disability is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, depression, and alcohol abuse is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to June 1981, with additional service in the Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction was subsequently transferred to Newark, New Jersey. In January 2008, the Veteran testified before a Veterans Law Judge (VLJ). However, the VLJ who conducted the January 2008 hearing is no longer employed by the Board. Under 38 C.F.R. § 19.3(b), this appeal may be reassigned to another VLJ for a decision. Subsequently, in April 2014, the Veteran testified before another VLJ, who is no longer employed by the Board. Transcript of both hearings has been associated with the record. The case was remanded by the Board in November 2008, May 2011, October 2013, and July 2014 for further development. In December 2016, the Board denied the claims for entitlement to service connection for a back disability, an acquired psychiatric disorder, Hepatitis C, and bilateral hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Joint Motion for Partial Remand (JMR), the Court vacated the Board’s decision and remanded the case to the Board for further development pursuant to the JMR. The denial of service connection for bilateral hearing loss was not challenged. In May 2018, the Veteran indicated he did not want another hearing and he elected to have his case decided on the record. 1. Entitlement to service connection for back disability is remanded. The Board finds that additional development is necessary before a decision may be rendered. The July 2014 Board remand requested a new exam to address the Veteran’s symptomatology and diagnoses prior to 2004 and his statements of continuing back symptoms since service. The Veteran underwent a VA examination in March 2015. However, the Board finds the examination inadequate because it did not address the July 2014 remand directives. The examiner simply noted the Veteran’s statements were considered. Accordingly, the Board finds a new examination is necessary.   2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, depression, and alcohol abuse is remanded. Pursuant to the October 2017 JMR, the Board erred in failing to ensure compliance with the May 2011 Board remand instruction to address the nexus opinion in a July 2005 VA treatment record. The medical examinations of record do not address the July 2005 treatment record. A Board remand confers upon the Veteran, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Thus, in accordance with Stegall, a remand for full compliance with the Board’s prior remand is warranted. Therefore, the Board will remand this claim so that the Veteran may be afforded another VA examination that addresses the Board’s previous remand directive. 3. Entitlement to service connection for Hepatitis C is remanded. The Board finds that the issue of service connection for Hepatitis C is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder. The outcome of the unresolved claim could impact entitlement to these benefits. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, decisions on these matters are deferred until the rating issues are decided. The matters are REMANDED for the following action: 1. Obtain updated VA records. 2. After completing directive (1), the AOJ should request opinions with examinations from the appropriate VA medical professionals for the Veteran’s back disability. The Veteran’s record, to include this remand, must be made available to the examiner for review. Upon review of pertinent medical history, the examiner should provide a response to the following: (a.) Identify (by diagnosis) all disabilities found related to the back. (b.) As to each diagnosed disability, is it at least as likely as not (a 50% or higher degree of probability) that it is related to service, to include the Veteran’s 1980 in-service motor vehicle accident. The examiner must discuss the Veteran’s lay statements as to continuity of low back symptomatology since service, to include the back pain the Veteran noted upon separation from service. A thorough rationale for all opinions expressed must be provided. 3. After completing directive (1), schedule the Veteran for a VA psychiatric examination with an appropriate examiner. The examiner should identify all acquired psychiatric disorders. The Veteran’s record, to include this remand, must be made available to the examiner for review. All indicated tests and studies should be completed. With respect to each acquired psychiatric disability found to be present and/or diagnosed during the pendency of the appeal, the examiner should offer an opinion on the following: (a.) Whether the Veteran’s symptomatology and presentation meets the diagnostic criteria for PTSD. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed acquired psychiatric disability, was incurred in, caused by, or is otherwise related to, the Veteran’s service, to specifically include the Veteran’s January 1980 in-service motor vehicle accident. (c.) If PTSD is diagnosed, the examiner should indicate what stressor(s) the diagnosis is based upon. The examiner must specifically address the nexus opinion in the July 2005 VA treatment record diagnosing PTSD as secondary to his in-service motor vehicle accident. A thorough rationale for all opinions expressed must be provided. The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran’s statements, and explain the rationale for the opinion given. 4. After completing directive (1), schedule the Veteran for a VA examination with an appropriate examiner for his Hepatitis C. The Veteran’s record, to include this remand, must be made available to the examiner for review. All indicated tests and studies should be completed. The examiner should offer an opinion on the following: (a.) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran’s Hepatitis is related to service? (b.) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran’s Hepatitis is related to in-service air gun inoculations. In making this assessment, the examiner is to consider the VBA Fast Letter 04-13 and any other pertinent medical data and/or literature. (c.) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran’s Hepatitis is proximately due to his acquired psychiatric disorder? (d.) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran’s Hepatitis is aggravated by his acquired psychiatric disorder? Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel