Citation Nr: 20008124 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 13-31 114 DATE: January 30, 2020 REMANDED Entitlement to service connection for a heart disorder, to include rheumatic heart disease with mitral valvulitis and insufficiency, is remanded. Entitlement to service connection for a psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1968 to October 1968, and ACDUTRA in the United States Army National Guard from December 1975 to April 1976 and active duty from November 1990 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. These matters were previously before the Board in February 2018 when they were remanded to the Agency of Original Jurisdiction (AOJ) for the development of records and to obtain VA examinations. For the reasons discussed below the Board is unable to conclude that the AOJ substantially complied with prior remand directions as it pertains to the issues on appeal. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for a heart disorder, to include rheumatic heart disease with mitral valvulitis and insufficiency, is remanded. Remand is required for substantial compliance with the prior February 2018 remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The prior remand directives instructed the RO to provide a VA examination and determine the nature and etiology of any heart disorder. The examination was provided a VA examination in September 2019. The examiner provided a negative opinion regarding the Veteran’s rheumatic heart disease. However, the prior remand directives required opinions regarding the Veteran’s other heart conditions as well, including whether his other heart conditions were as likely as not related to his military service, or aggravated by his active duty service. The opinion provided was not responsive to the February 2018 Board remand directives. As such, a remand is again required for this claim in order to obtain a compliant examination and opinion. 2. Entitlement to service connection for a psychiatric disorder is remanded. Remand is required for an adequate VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a veteran has provided competent and credible lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Veteran received a VA examination in September 2019. The examiner opined the Veteran’s current psychiatric disorder was less likely than not incurred or caused by an in-service injury, event, or illness noting that there were no medical records showing continuity of care since that time. The examiner found that there was no credible evidence supporting the Veteran’s contention that his current diagnosis had its onset in service or was otherwise related to service. The examiner referenced the earliest available mental health records as being from June 1993, and the earliest diagnosis of bipolar disorder in 2005 in reaching this conclusion. In a March 2011 VA examination, the Veteran reported psychiatric treatment for over 20 years, including taking daily medication. He also reported his symptoms began in 1968 as a result of being medically discharged from the military. Additionally, VA treatment records from 1995 onwards reflect a diagnosis of bipolar disorder. At his Board hearing, the Veteran testified that he suffered a nervous breakdown in service but did not seek treatment. He maintained that his bipolar disorder symptoms began while in service. He also reported that his commander advised him to seek help, but that he did not because he wanted to complete his 20 years in the service and did not want anything on his record. In a June 1987 Report of Medical History, the Veteran endorsed having depression and excessive worry. In a March 1991 Report of Medical History the Veteran listed a positive history of nervous troubles. The Board finds that the September 2019 examination report is inadequate because it did not address the Veteran’s lay statements and other evidence regarding the onset and continuity of his symptoms. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to the following questions: a. Determine all currently diagnosed psychiatric disorders. If a previously diagnosed disorder is not found, including bipolar disorder, depression, and adjustment disorder, provide an explanation. b. For any diagnosed psychiatric disorder other than depression, is there clear and unmistakable (undebatable) evidence that the Veteran had that psychiatric disorder prior to his active duty service from November 1990 to April 1991? c. If the answer to question (b) above is yes, is there clear and unmistakable (undebatable) evidence that the pre-existing psychiatric disorder, as well as pre-existing depression, was NOT aggravated during the Veteran’s active duty service from November 1990 to April 1991? d. If the answer to question (b) above is no, is it at least as likely as not (50 percent or greater probability) that each psychiatric disorder had onset during service or is otherwise related to service from November 1990 to April 1991? e. If a personality disorder is diagnosed, is it at least as likely as not (50 percent or greater probability) that any additional psychiatric disability was superimposed upon the personality disorder as a result of service. f. The examiner must specifically address the Veteran’s assertions of in-service onset. The examiner must also specifically address the earlier diagnosis of bipolar disorder in 1995, as well as the Veterans endorsement of depression and excessive worry in a June 1987 Report of Medical History, and a positive history of nervous troubles in a March 1991 Report of Medical History. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any heart disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should provide an opinion as to the following questions: a. Determine all currently diagnosed heart disorders. b. For any diagnosed heart disorder other than rheumatic heart disease, is there clear and unmistakable (undebatable) evidence that the Veteran had that disorder prior to his active duty service from November 1990 to April 1991? c. If the answer to question (b) above is yes, is there clear and unmistakable (undebatable) evidence that the pre-existing heart disorder, as well as pre-existing rheumatic heart disease, was NOT aggravated during the Veteran’s active duty service from November 1990 to April 1991? d. If the answer to question (b) above is no, is it at least as likely as not (50 percent or greater probability) that each heart disorder had onset in, or is otherwise related to, service from November 1990 to April 1991? 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.