Citation Nr: 21000998 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-25 332 DATE: January 6, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, claimed as posttraumatic stress disorder (PTSD), to include as secondary to in-service personal assault, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to July 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This matter was remanded by the Board in August 2017 and December 2019. As discussed below, unfortunately another remand is necessary. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, claimed as PTSD, to include as secondary to in-service personal assault, is remanded. The Board remanded the Veteran's claim in December 2019 to, in part, obtain a VA medical opinion concerning the nature and etiology of his acquired psychiatric disorder, to include depression and anxiety, claimed as PTSD, to include as secondary to in-service personal assault. In particular, the examiner providing the medical opinion was directed to opine on whether the Veteran’s acquired psychiatric disorder(s), including but not limited to, other specified depressive episodes and anxiety disorder, unspecified, is/are at least as likely as not was/were incurred during active service, or is/are related to an in-service injury, event, or disease, specifically including his in-service loss of appetite, disciplinary actions, being away from home and his ill mother, being around guns and different kinds of people, taunting from a fellow service member, and invitation to participate in a homosexual encounter. The Veteran was afforded a VA examination in July 2020, where the examiner diagnosed him with major depressive disorder, alcohol use disorder, cocaine use disorder, cannabis use disorder, and anxiety disorder. The VA examiner concluded that there is insufficient evidence in the record of the Veteran’s brief, seven month term of service that he acquired psychiatric symptoms meeting criteria for his noted psychiatric conditions during military service. The VA examiner noted that the Veteran’s VA medical treatment records note a “long history of PTSD” but do not state when the original diagnosis of PTSD was made; the VA examiner concluded that the Veteran does not meet the criteria for PTSD. The VA examiner also stated that while the Veteran “appears to have been notably psychologically disturbed by a proffer of sex with a fellow, male service member and then later by verbal aspersions by another female service member, neither of these experiences constituted his exposures to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence.” See July 2020 VA Examination. The examiner did not opine on whether the Veteran’s acquired psychiatric disorders of major depressive disorder and anxiety disorder were related to an in-service injury, event, or disease, in particular those listed in the December 2019 Board remand instructive including his in-service loss of appetite, disciplinary actions, being away from home and his ill mother, being around guns and different kinds of people, taunting from a fellow service member, and invitation to participate in a homosexual encounter. The Board finds the July 2020 VA medical opinion inadequate, as it is not responsive to the directives posed by the Board in the December 2019 remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D'Aries, 22 Vet. App. at 104 (holding that an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Additionally, the Veteran’s representative noted that while the July 2020 VA examiner seemed to concede “the potential trauma an unwanted sexual advance would cause yet deemed it inconsequential.” See October 2020 Appellate Brief. The representative recalled that the Veteran contends the unwanted sexual advance caused him psychological harm, to the point where he spent countless years questioning his own sexual identity. See id. Indeed, the July 2020 VA examiner noted that the Veteran was “psychologically disturbed” by the invitation to participate in a homosexual encounter and by the taunting of the fellow service member, but only concluded that these experiences did not rise to the level of a stressor for a diagnosis of PTSD; the examiner did not explain why these in-service events were not related to his diagnosed acquired psychiatric disorders, including his diagnosed major depressive disorder and anxiety disorder. Based on the above, the Board finds that the July 2020 VA Examination did not substantially comply with the December 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Therefore, the Board finds that a new VA medical opinion is necessary to fully address the nature and etiology of the Veteran's claim for service connection. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the July 2020 VA examiner, if available, or a suitable substitute. The examiner must opine whether it is at least as likely as not (50% or greater probability) that the Veteran’s major depressive disorder and anxiety disorder had their onset during service or are related to an incident of service, specifically noting his in-service loss of appetite, disciplinary actions, being away from home and his ill mother, being around guns and different kinds of people, taunting from a fellow service member, and invitation to participate in a homosexual encounter. A complete explanation for all opinions expressed must be set forth in the report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.