Citation Nr: 20056729 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 15-26 162 DATE: August 27, 2020 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1971 to October 1973. Regrettably, he died in March 2020. The appellant is his surviving spouse. She was substituted as the appellant in this appeal in July 2020. This matter comes before the Board of Veterans Appeals (Board) on appeal from April 2012 and March 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2020 when they were remanded to the Agency of Original Jurisdiction (AOJ) for VA examinations. Pursuant to the January 2020 Board remand, VA examinations were provided to the Veteran in March 2020. As additional relevant evidence has been associated with the claims file, and the appellant has not waived AOJ review, a Supplemental Statement of the Case must be issued. See 38 C.F.R. § 20.1304 (c). Accordingly, remand for a SSOC is necessary. Additionally, with regard to the claim for service connection for an acquired psychiatric disorder, the Board finds that further development is necessary before a decision on the merits may be made. In the January 2020 remand, the Board directed the examiner to address whether there was any clear and unmistakable evidence of a psychiatric conditions pre-existing service, whether any pre-existing conditions were aggravated by the Veteran’s active duty service, and to discuss the lay statements submitted by the Veteran in March 2018. Pursuant to the Board remand, the Veteran received a VA examination in March 2020. However, the examiner did not comply with the remand directives noted above. The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. As the January 2020 remand was not complied with, and in accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. After considering all of the evidence of record, the examiner is asked to address the following: (a.) Is there clear and unmistakable evidence (obvious, manifest, and undebatable) evidence that any of the Veteran’s psychiatric disorders existed prior to active service? Please discuss the lay statements submitted by the Veteran in March 2018 in addressing the matter. (b.) If the answer to question (a) is yes, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that the pre-existing psychiatric disorder WAS NOT aggravated (permanently worsened) during service? (c.) If the answer to question (a) is no, is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed psychiatric disorder: 1. Had its onset in service; 2. Was superimposed upon his personality disorder during service; or 3. Is otherwise related to the Veteran’s service? The examiner is advised that the Veteran is competent to report symptoms and that his reports (lay observations) and other lay evidence of record, including the March 2018 supporting lay statements, must be considered in formulating the requested opinions. If the Veteran’s reported history is discounted, the examiner must provide a reason for doing so. The Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a Supplemental State of the Case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. ANTHONY C. SCIRÉ, JR 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.