Citation Nr: 21000458 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 95-35 067 DATE: January 5, 2021 ISSUE Entitlement to service connection for a neuropsychiatric disorder, to include organic brain syndrome with personality disorder and depressive syndrome. REMANDED Entitlement to service connection for a neuropsychiatric disorder, to include organic brain syndrome with personality disorder and depressive syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1968 to May 1971. He had subsequent service with the Texas National Guard from November 1977 to May 1980 and from July 1982 to January 1984. The Veteran’s National Guard service included periods of active duty for training (ACDUTRA) from June 3, 1978 to June 17, 1978, and from March 16, 1979 to April 25, 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for an organic brain syndrome. During the course of the appeal, the Veteran’s disability was recharacterized as a neuropsychiatric disorder, to include organic brain syndrome with personality disorder and depressive syndrome. The Board notes that the Veteran testified at local RO hearings in January 1995, April 1996, and November 2006, and at Board hearings in May 1997 and September 2012. Transcripts of those proceedings have been associated with the claims file. In January 2020, the Veteran’s attorney filed a Motion to Withdraw from Representation of the Veteran on the basis that “various factors make continued representation impractical or otherwise unethical,” specifically, that the attorney had been unable to make contact with the Veteran for an unreasonable period of time. The Veteran has not sought to appoint another representative. Most recently, the claim was remanded by the Board in April 2020. The Board also granted the attorney’s Motion to Withdraw from Representation. Although any further delay is regrettable, the Board finds that a remand is necessary for additional development. Procedural History For procedural clarity, the Board notes that after the RO initially denied the Veteran’s service connection claim in May 1994, the Veteran appealed to the Board, which remanded the claim back to the RO in August 1997. Upon return to the Board in February 2000, the Board denied the appeal. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (the Court). In an April 2001 Joint Motion for Remand (JMR) the Secretary of the VA and the Veteran requested the Court remand the matter to the Board for further proceedings, to include consideration of the claim under the then newly enacted Veterans Claims Assistance Act (VCAA) of 2000. The Court granted the JMR and remanded the claim back to the Board in an April 2001 Order. Following the Court’s remand, the Board issued a decision in March 2002 again denying the Veteran’s claim, and the Veteran again appealed to the Court. Following an October 2004 JMR by the Veteran and the Secretary, the Court vacated the March 2002 decision and again remanded the case to the Board for further proceedings. The Board subsequently remanded the Veteran’s case in April 2005, March 2007, and November 2007 for additional development and to ensure compliance with the prior remand directives and the VCAA. Upon completion of this additional development, the Board again denied the Veteran’s claim in a May 2009 decision. In a statement received by the Board in June 2009, the Veteran wrote that he had evidence he felt should not be overlooked by adjudicators and requested that his claims file be returned to the RO in Waco, Texas. In a November 2009 statement, the Veteran requested reconsideration of the May 2009 Board decision, and submitted private medical records from a doctor with the initials J. B. Meanwhile, the Waco RO treated the Veteran’s November 2009 statement and submission of additional medical records as a petition to reopen the previously denied service connection claim, characterizing the Veteran’s claim as one for service connection for traumatic brain injury (TBI). In a June 2010 rating decision, the RO denied the Veteran’s petition to reopen. The Veteran filed a timely appeal of the June 2010 rating decision, and in a July 2014 decision, the Board denied the Veteran’s petition to reopen. The Veteran filed a timely appeal to the Court. In January 2015, the Board considered but denied the Veteran’s November 2009 motion for reconsideration of the May 2009 Board decision. In April 2015, the Veteran appealed the Board’s May 2009 decision. In a September 2015 Order, the Court determined that the Veteran’s April 3, 2015 Notice of Appeal of the Board’s May 2009 decision was timely because the operative effect of the Board’s denial of the Veteran’s November 2009 motion for reconsideration was to toll the finality of the May 2009 Board decision. Critically, this tolling rendered the June 2010 rating decision and subsequent July 2014 Board decisions null. In a December 2015 Order, the Court, upon another JMR, vacated the Board’s May 2009 decision and remanded the case to the Board for further proceedings, to include consideration of the Veteran’s direct service connection theory of entitlement, and to more fully address the adequacy of various VA examination reports. Significantly, in a separate December 2015 order, the Court dismissed the Veteran’s appeal of the Board’s July 2014 decision. In granting the December 2015 JMR, the Court found that (1) the Board’s May 2009 decision did not provide an adequate discussion of the Veteran’s direct-service-connection theory or acknowledge his second in-service head injury, and (2) that the Board erred in determining that the VA medical examination reports were adequate to support a denial of the claim. With respect to the first error, in the JMR the parties observed that the Board focused on whether there was in-service aggravation of a pre-service head injury during the Veteran’s National Guard service. However, the Board had previously recognized the Veteran’s contention that his neuropsychiatric disorder was related to a head injury sustained during his active duty service in the Army from April 1968 to May 1971. See JMR; see also, April 1996 RO Hearing Transcript; June 2011 VA Form 9. As to the second error, the parties found that the Board inadequately explained whether the January 14, 1999, March 7, 2006, and April 7, 2006 VA examination reports were sufficient to deny the Veteran’s claim on a direct basis. They also found that the Board did not adequately explain whether the medical evidence was sufficient to find that the presumption of soundness had been rebutted by clear and unmistakable evidence of non-aggravation. The parties reasoned that not all the examiners commented on the issue of aggravation or applied a standard that equated to “clear and unmistakable evidence,” citing the January 14, 1999, March 7, 2006, and July 2007 VA examination reports in support of this determination. Next, in August 2016, the Veteran submitted a private nexus opinion regarding his claimed conditions. The private examiner did not personally examine the Veteran, instead basing his opinion upon the available lay and medical evidence then of record. Later, in November 2016, the Board again remanded the Veteran’s claim to the RO for additional development including to obtain a VA medical opinion. Notably, the Board directed that “the claims file be reviewed by an appropriate clinician to identify any neuropsychiatric disorder diagnosed from March 1994 to present and opine whether any such disorder is related to service. If the clinician determines that a TBI examination would be helpful in assessing the nature of the Veteran’s diagnosed conditions, one should be provided.” The appeal was most recently remanded by the Board in April 2020. Only partial development was completed due to the inability to make contact with the Veteran. The appeal is now back before the Board. Duties to Notify and Assist As described in the November 2016 Remand, the Board determined that a remand was necessary to obtain a medical opinion to address the conflicting medical diagnoses and medical nexus opinions of record. A new examination was to be provided only if deemed necessary by the opining clinician. The Board acknowledged that the RO attempted to schedule the Veteran for a new examination and that the Veteran failed to respond to multiple outreach efforts. The Board discussed that the Veteran failed to keep the RO and Board apprised of his current address although the obligation is on the claimant to have a reliable address for receiving notice and to keep the Secretary informed of the address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (holding that “[i]n the normal course of events, it is the burden of the veteran to keep... VA apprised of his whereabouts.”). However, the Board found that it still required a comprehensive medical opinion to in order to accurately reconcile the conflicting medical evidence already of record. For additional clarity, the Board observes that following the Board’s November 2016 Remand, the RO partially completed the additional development. In February 2017, the RO requested the Veteran to supply information pertaining to his alleged psychiatric treatment while stationed at Fort Gordon, Georgia. The Veteran failed to respond with this information. In March 2017, the RO additional requested a complete copy the Veteran’s service medical record from the National Personnel Records Center (NPRC). In April 2017, the RO contacted the NPRC to obtain records from the 130th General Hospital in Nurnberg, Germany from 1968, 1969, and 1970. In June 2017, the RO was notified that no records were located. Months later, in June 2017, the RO contacted NPRC to obtain mental health treatment records from the U.S. Army Hospital at Fort Gordon for 1970. In July, the RO was notified that no records were located. In this letter, the RO notified the Veteran regarding the records and documentation it still needed. The RO advised the Veteran as to how to submit any such records in his possession. The Veteran’s attorney was copied on this correspondence. See VA correspondence dated July 19, 2017. The following month, in July 2017, the RO sent the Veteran a letter indicating that it had requested mental health treatment records from Fort Gordon and from the 130th General Hospital in Germany, however the records could not be located and were deemed unavailable for review. The RO notified the Veteran where to send any correspondence and records related to his claim with no response from the Veteran. According to another record dated July 17, 2017, the RO attempted to schedule the Veteran for an updated medical examination. The RO provided the Veteran with information regarding the examination but he “failed to report” to the appointment. Next, the evidence of record shows that in May 2019, the RO made contact with the Veteran’s attorney, who informed the RO that the Veteran was not in good health and requested that the Veteran’s VA medical examination be scheduled as soon as possible. The RO advised that both the Veteran and representative would be contacted upon scheduling. On the same date, the RO mailed the Veteran and his former attorney a letter explaining that a VA examination was needed in order to complete the Veteran’s claim and notified him how to prepare for the examination. The letter provided resource information regarding who to contact with any questions related to the claim and examination. The notice letter stated in bold font, “if you do not attend your VA claim exam, you may receive a lower benefits rating or a denial of benefits.” In October 2019, the RO requested a new medical examination be scheduled, and directed that it includes an in person examination. In August 2019, the RO issued a deferred rating decision indicating that the May 2019 examination was never completed as the Veteran failed to “RSVP.” The RO noted that returned mail had been received from his last known address and requested to reschedule the VA examination again. The RO subsequently reached out to the Veteran’s attorney for an updated address for the Veteran. The attorney advised that he did not have a good address for the Veteran either, but that he would continue searching. The RO conducted an additional search for the Veteran’s address as registered with the Social Security Administration, but this address was subsequently discovered to be invalid. Next, a record dated November 2019 indicates that the RO attempted to schedule the Veteran for the updated VA examination, but that this examination was cancelled when the Veteran failed to respond to confirm the appointment. See November 2019 examination cancellation note. In January 2020, as noted earlier in this decision, the Veteran’s attorney filed a Motion to Withdraw from Representation due to lack of contact with his client. In addition to the contact issue, as part of the Board’s November 2016 Remand, the Board highlighted that the Veteran’s testimony suggested that “service treatment records from his period of active service may be incomplete.” During his April 1996 RO hearing, the Veteran reported seeing a psychiatrist who told the Veteran that “he just did not like the Army.” He also reported that he was later sent to a psychiatrist while stationed at Fort Gordon, Georgia. See April 1996 Hearing Transcript. The Veteran testified that he had one visit with a psychiatrist during service in April or May 1968. Id. On remand, the RO requested all such records along with a complete copy of the Veteran’s service records. In November 2016 and again in April 2020, the Board previously found that given the inconsistencies between the dates of the Veteran’s reported psychiatric treatment and the lack of psychiatric treatment records contained in the Veteran’s service treatment records, a remand was appropriate to obtain any inpatient clinical records and mental health records from the Veteran’s military service. The Board determined that personnel records should be obtained if they “would be helpful in identifying which medical facilities the Veteran received treatment during service.” In April 2020, the Board found that the RO substantially complied with these directives to seek additional service records. Recently, on May 1, 2020, VA sent the Veteran a subsequent development letter. The letter instructed him that there is additional evidence necessary to fully develop his claims. The letter contains several bullet points of detail, including a questionnaire related to his PTSD claim, and a VA 21-4142 Authorization to Disclose Information to the Department of Veterans Affairs (VA). Later, on June 4, 2020, the Veteran was sent a follow up development letter. This letter advised him that a VA examination was being scheduled, and of the consequences for failing to report to the scheduled VA examination. Indeed, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655 (a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b). In June 2020, the Veteran was afforded a set of VA medical opinions from a physiatrist. The VA examiner reviewed the claims file. The Veteran was not present. Significantly, after the June 2020 VA medical opinion, on July 29, 2020, VA received a VA 572 Request for Change of Address / Cancellation of Direct Deposit. The Veteran provided a new address outside Elgin, Texas. Next, on August 31, 2020 and again on September 15, 2020, VA received returned mail sent to the Veteran’s previous address. As discussed below, the Veteran may be homeless or may have relocated, hence missing his mail, but still intending to pursue his longstanding appeal. Entitlement to service connection for a neuropsychiatric disorder, to include organic brain syndrome with personality disorder and depressive syndrome is remanded. The Board incorporates its discussion from the sections above by reference, in addition to its discussion in the body of the November 2016 and April 2020 Board Remands. The Veteran contends that his current, variously diagnosed neuropsychiatric disorder is related to active service. The Veteran has made a variety of assertions regarding how his military service either caused or aggravated his underlying conditions. The Board regrets any additional delay, but for reasons explained below, additional development is necessary so that the Veteran is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. By way of background, the Veteran advances two theories of entitlement to service connection for a neuropsychiatric disorder. He asserts that his National Guard service aggravated the residuals of his May 1976 head injury. See, e.g., March 1994 Statement in Support of Claim (contending the organic brain syndrome was “aggravated while on active duty while assigned to the 49th Armor Division” with Texas Army National Guard); November 1994 VA Form 9; January 1995 RO Hearing Transcript. Alternatively, the Veteran asserts that his condition began during active duty service, as a result of his day-to-day military stress and “unfortunate incidents” that befell the Veteran, including an in-service personal assault. See April 1996 RO Hearing Transcript; May 1997 Board Hearing Transcript; and January 2015 Motion for Reconsideration. The Veteran also reported that he had mental health, memory, and anger problems prior to his May 1976 car accident. See September 2012 Board Hearing Transcript. Unfortunately, the Board cannot make a fully informed decision regarding the Veteran’s claim of entitlement to service connection until the various medical opinions of record are adequately reconciled and diagnoses clarified. By way of evidentiary history, Veteran had active service in the Army from April 1968 to May 1971. The Veteran’s April 1968 entrance examination noted normal head, neurologic, and psychiatric systems; a scar over his right eye was observed. On his contemporaneous report of medical history, the Veteran endorsed previously having mumps but denied currently having or ever experiencing all other listed conditions; he also reported he was in good health. First, a July 8, 1968 Service Treatment Record (STR) from Fort Huachuca, Arizona indicates the Veteran reported “[headache] after bumping his head.” His pupils were equal, round, regular, and reacted to light and accommodation. He was assessed with headaches and treated with aspirin. Not long thereafter, on August 23, 1968, the Veteran was treated after he fell down stairs and was knocked unconscious the previous night. He reported feeling weak and dizzy. His vision was noted as “okay,” and he did not exhibit nausea or vomiting. He reported pain “over head” and to his left jaw, and stated his neck was stiff. His pupils were equal, round, regular, and reacted to light and accommodation, and exhibited full range of motion. The clinician noted that the Veteran’s tympanic membranes were “5” as was his “neural.” The clinician noted facial swelling over the left jaw and head, and that the Veteran’s neck hurt a little to turn. The Veteran was alert and oriented. The clinician determined that the Veteran had no fracture of his skull, jaw, or cervical spine, and recommended the Veteran return to duty. An October 5, 1969 note indicated that the Veteran had been drinking and was found undressed in a building near the airstrip. The Veteran reported being hit over his head, but an examination revealed no deformities or bruises of his face and neck. The Veteran was noted to be oriented, aware, and cooperative. No pathology was detected. The clinician assessed the Veteran with simple drunkenness. Later, a September 9, 1970 note indicates the Veteran reported having a nerve problem that caused him to feel chills, and that his symptoms began a week prior. The Veteran also “admits to feeling very tense while in school and this leads to nervousness.” He was prescribed 10 mg of Librium. Next, the March 1971 separation examination showed normal head, neurologic, and psychiatric systems upon clinical examination; however, under question 20 of the Veteran’s person Report of Medical History, he self-reported frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, and nervous trouble, but denied experiencing frequent or severe headaches. Later, an October 27, 1976 discharge summary from Brackenridge Hospital noted that the Veteran was hospitalized in May 1976 with massive injuries following a car accident. It documented that the Veteran had severe head injuries, including a hematoma in the left temporal lobe region with a left to right midline shift. The summary indicated the Veteran was treated by Dr. E. B. for his injuries, and was also seen by Dr. T. S., a psychiatrist, for a psychiatric evaluation. The summary concluded noting that the Veteran made a remarkable recovery mentally, appeared to be alert, had a good memory for recent events, but still had a clouded memory for the events surrounding the accident and his early postoperative phase in intensive care. Years later, the Veteran’s mother submitted a letter stating that after his accident, the Veteran “was like two people; as if he were a split personality.” See letter dated September 27, 1990. The Veteran had subsequent service with the Texas National Guard from November 1977 to May 1980 and from July 1982 to January 1984. The Veteran’s National Guard service included periods of active duty for training (ACDUTRA) from June 3, 1978 to June 17, 1978, and from March 16, 1979 to April 25, 1979. The Board notes that the record contains no entrance examinations for the Veteran’s two periods of ACDUTRA in 1978 and 1979. The Veteran’s November 1977 enlistment examination revealed normal head, neurologic, and psychiatric systems. The November 1977 report of medical history noted broken bones; the Veteran denied all other symptoms, including headaches, dizziness or fainting spells, head injury, trouble sleeping, depression or excessive worry, loss of memory, nervous trouble of any sort, and periods of unconsciousness. He reported that his health was “good.” The Veteran’s July 1982 enlistment examination showed normal head, neurologic, and psychiatric systems. His report of medical history noted broken bones but denied all other symptoms, including headaches, dizziness or fainting spells, head injury, trouble sleeping, depression or excessive worry, loss of memory, nervous trouble of any sort, and periods of unconsciousness. He reported he was in good health. Following the completion of the Veteran’s final period of service, he underwent numerous mental health evaluations. He has been diagnosed at various points with conditions ranging from personality disorders with schizophrenic characteristics to organic brain syndrome and depressive syndrome. Various examiners have attributed his mental health conditions to several causes and events prior to, during, and after his periods of active service. See the Board’s November 2016 Remand and extensive summary of medical and lay evidence. Significantly, in June 2020, the Veteran was afforded a set of VA medical opinions from a physiatrist. The VA examiner reviewed the claims file. The Veteran was not present. The examining physiatrist repeatedly added statements that he deferred various opinions to a mental health professional. For example, he remarked, “I will defer to a mental health professional to determine if veteran had a mental health condition which was aggravated beyond natural progression during periods of ACDUTRA.” (emphasis added.) Here, as underscored in the April 2020 Remand, the Board remains cognizant that it may not make its own independent medical determinations, and that, as indicated in its last remand, the inconsistencies between the medical evidence of record must be more adequately resolved. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The previously identified development must be completed by the RO, and evidence of its completion should be associated with the claims file. In addition, VA has sent mail to the Veteran’s previous mailing address, which was eventually returned in the months after the Veteran’s submission of an address change form. Indeed, on July 29, 2020, VA received a VA Form 20-572 Request for Change of Address / Cancellation of Direct Deposit. See generally Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The Veteran’s previous attorney reported that he had been unable to make contact with the Veteran for an unreasonable period of time. This could be indicative of the Veteran experiencing homelessness. The Veteran was not present for the June 2020 VA examination, and important lay and medical evidence is not of record. Drawing all inferences in favor of the Veteran, the Board has sympathetically considered that he attempted to update his address, although the specific reason for his failure to report for the scheduled VA examination remains undetermined. An evaluation of the Veteran in person will still be useful in rendering a decision. The Veteran has continued to pursue his appeal. Therefore, the Veteran should be sent new development letters to his most recent address. He should then be afforded an additional VA examination with medical opinion that includes an in-person physical examination and consideration of lay and medical evidence. The Veteran should be notified of this examination, and this should be documented in the claims file. If the Veteran fails to respond to the development letter or fails to report to the scheduled VA examination, the appeal will be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655. The VA examination should be conducted by a mental health professional skilled at diagnosing psychiatric disorders, such as a VA psychiatrist or psychologist, to the extent possible. Therefore, remand is necessary. Lastly, as the Veteran’s attorney withdrew representation, should the Veteran wish to appoint a new representative, he is advised that he may submit a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative. The matters are REMANDED for the following action: 1. Make one more attempt to contact the Veteran at his updated address from the July 29, 2020, VA Form 20-572. Upon verifying his current address, to the extent possible, send the Veteran the following: (a.) A notice letter in connection with his claim for a neuropsychiatric disorder, to include a disorder based, in part, on an alleged in-service personal assault. The letter must (1) inform him of the information and evidence that is necessary to substantiate the a service connection claim based on personal assault; (2) inform him about the information and evidence that VA will seek to provide; and (3) inform him about the information and evidence that he is expected to provide. Under 38 C.F.R. § 3.304 (f)(5) the RO should advise the Veteran of potential secondary sources tending to substantiate his claim of personal assault. The Veteran should also be invited to submit any supporting evidence, including lay evidence from fellow service members who witnessed the Veteran’s stated stressors. All actions to verify the alleged stressors should be fully documented in the claims file. If the information provided by the Veteran lacks sufficient specificity to be verified, the AOJ should make a formal finding to that effect. (b.) Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed neuropsychiatric disorder. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Make one more attempt to independently verify the Veteran’s claimed in-service stressor, to include those pertaining to his reports of personal assault in accordance with 38 C.F.R.§ 3.304(f)(5). The RO should also forward a copy of the Veteran’s military personnel records, together with the stressor information, to the Joint Services Records Research Center (JSRRC). Ask the JSRRC to provide any additional information available regarding the Veteran’s stressor. Record that this was completed as well as the response received, must be documented in the file. 3. After the above development has been completed to the extent possible and any records received have been associated with the claims file, do the following: (a.) If the Veteran has been located, schedule him for an updated, comprehensive VA examination regarding his claimed conditions. Regardless of whether the Veteran is available to attend another in-person examination, forward the Veteran’s claims file to an appropriate clinician or clinicians for a medical opinion on the nature and etiology of the Veteran’s claimed neuropsychiatric disorders. To the extent possible, this should be VA psychiatrist or psychologist, or another clinician familiar with diagnosing psychiatric disorders. The clinician(s) must have the necessary expertise to adequately assess the voluminous medical evidence of record. Regardless of whether the Veteran is available for an in-person examination, have the opining physician/specialist provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. The opining clinician is requested to do the following: (a.) Fully review the entire claims folder, to include this remand and the November 2016 Remand. Indicate that such a review was conducted. Note if any necessary records were unavailable. (b.) Identify any and all neuropsychiatric and psychiatric disorder present at any time since March 1994, even if such disorder resolved during the pendency of the appeal. The examiner is asked to consider and discuss each previous VA and private medical examination of record along with any pertinent lay statements relied on in forming these diagnostic impressions. If the examiner finds any previous diagnoses medically suspect, the Board asks the examiner to explain why that is so. (c.) As to each additional identified disorder indicate whether it is clear and unmistakable (obvious, manifest, and undebatable) that any identified disorder preexisted any period of active service (that is, preexisted the Veteran’s commencement of each period of active service and ACDUTRA). For example, the clinician is asked to opine whether there is clear and unmistakable (obvious, manifest, and undebatable) that any identified neuropsychiatric/psychiatric disorder preexisted the Veteran’s active duty Army service beginning in April 1968, then whether there is clear and unmistakable evidence of an identified neuropsychiatric disorder that existed prior to his second active duty period, and so forth. (d.) If any disorder did preexist active service/ACDUTRA, then is it clear and unmistakable (obvious, manifest, and undebatable) that any preexisting disorder WAS NOT aggravated (i.e., permanently worsened) during the Veteran’s active service/ACDUTRA, or is it clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of the condition? On this point, the Board specifically requests the examiner elaborate clearly as to basis for their opinion and to cite all evidence of record and medical references relied upon in determining this opinion. (e.) If the examiner finds that it is not clear and unmistakable that any diagnosed neuro/psychiatric disorder preexisted service and that it was not aggravated by service, then is it at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed disorder is directly related to the Veteran’s active duty service, to include the documented head injuries on July 8, 1968, August 23, 1968, October 5, 1969, individually or collectively; the Veteran’s September 9, 1970 nerve problem; or the Veteran’s reported in-service personal assault (if verified)? (f.) If the Veteran is diagnosed with a personality disorder, is it at least as likely as not (a probability of 50 percent or greater) that there is additional disability due to aggravation of the personality disorder by a superimposed disease or injury sustained in service, to include the documented head injuries on July 8, 1968, August 23, 1968, October 5, 1969, individually or collectively; the Veteran’s September 9, 1970 nerve problem; or the Veteran’s reported in-service personal assault (if verified)? (g.) Did the Veteran have a neuropsychiatric disorder(s) at entrance into National Guard service in November 1977? (h.) If the Veteran had a neuropsychiatric disorder that preexisted one or both entrances into National Guard service, is it at least as likely as not (a probability of 50 percent or greater) that the underlying condition, as opposed to its symptoms, was worsened during periods of ACDUTRA service from June 3, 1978 to June 17, 1978 and from March 16, 1979 to April 25, 1979? (i.) The clinician is asked to review the August 2016 private medical report submitted by the Veteran completed by Dr. P. H., who provided two opinions, the first addressing whether the Veteran’s claimed neuropsychiatric disorder and organic brain syndrome was directly related to his period of active duty service from April 1968 to May 1971, and the second addressing whether the Veteran’s condition was aggravated during his National Guard service from November 1977 to May 1980 and from July 1982 to August 1984. The clinician specifically asked to respond to conclusions drawn by Dr. P. H., and to explain whether the clinician agrees with the ultimate opinions provided in the August 2016 report. The VA clinician is asked to provide an explanation for their response. (j.) Provide an opinion as to whether any diagnosed psychiatric condition (e.g., depression, anxiety, PTSD) are etiologically related to the any organic brain syndrome or otherwise etiologically related to any period of the Veteran’s active service. (k.) Regarding the Veteran’s alleged in-service personal sexual assault, please opine (based upon the evidence available) whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If not, the examiner should address why such a diagnosis is not warranted. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and an in-service stressor, including the MST. (l.) Would a separate TBI examination be medically necessary to definitively assess the nature of the Veteran’s diagnosed conditions? The examiner is reminded that “clear and unmistakable evidence” means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. The phrase “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. If the Veteran fails to respond to the development letter(s) or fails to report to the scheduled VA examination, the appeal will be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655. 4. If the opining clinician or RO determines that a TBI examination is necessary, one should be provided if the Veteran is available. 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.