Citation Nr: 21001257 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-15 263 DATE: January 7, 2021 REMANDED Entitlement to service connection for a psychiatric disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1971 to October 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 Department of Veterans Affairs (VA) rating decision. In December 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2019 and December 2019, the Board remanded the issue for additional development. The Board is aware that this matter was remanded twice before (and regrets the delay inherent with yet another remand). However, the response provided has not been substantially compliant with instructions in the previous remands, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s December 2019 remand sought a clarifying medical opinion regarding the nature and likely etiology of all psychiatric diagnoses during the pendency of the appeal. It requested, if a current psychiatric disability was not found, to reconcile that conclusion with the diagnosis by the September 2015 VA examiner and notations in the treatment records (including in September 2019) showing the Veteran was assigned a diagnosis of an acquired psychiatric disability. It was noted that if an examination of the Veteran was deemed necessary for response to an opinion sought, it should be arranged. The remand further instructed that if the examiner was unable to provide an opinion without resort to speculation, it must be noted with explanation why that is so. In the January 2020 opinion received in response to the remand, the consulting provider (who provided the opinion in August 2019) stated the only opinions he could provide relate to his own (August 2019) evaluation of the Veteran. The consulting provider acknowledged that some of the diagnoses during the period on appeal were in accordance to DSM-5 but indicated he could not provide an etiology for the past psychiatric diagnoses without resort to speculation (stating he cannot determine the extent to which the relevant providers considered relevant information in making their diagnoses and formulating their opinions). The Board notes that before it can rely on an examiner’s conclusion that an etiological opinion would be speculative; the examiner must explain the basis for such conclusion (e.g., insufficient evidence, the current state of medical knowledge, or insufficient medical knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). Although the consulting provider stated he could not speculate as to what stressors the September 2015 VA examiner based her diagnosis of adjustment disorder on, the consulting provider reviewed the 2015 provider’s statement (“there is no clear link between the mental health diagnoses from the military and his current adjustment disorder”) and speculated that it suggests that “whatever stressor(s) she was basing her diagnosis on were unrelated to his experiences in the service.” [The Board notes the September 2015 medical opinion was found to be inadequate for rating purposes as it was based on an incomplete review of the record. See April 2019 Board remand.] Additionally, in commenting on the September 2019 VA treatment record, the consulting provider stated it was unclear as to whether the psychiatric symptoms noted would reach a level of clinical significance and that he could not speculate regarding the VA treating provider’s rationale in assigning the diagnosis. The consulting provider indicated that he would have to resort to speculation as to the reasoning of the other providers as he did not personally have the opportunity to evaluate the Veteran at that time to fully determine the relevant etiology of complaints at those times. Nonetheless, the consulting provider opined that the Veteran does not have a current mental health condition. The examiner appears to indicate additional examination is required to clarify the diagnosis/reconcile the conflicting evidence and the etiology of all psychiatric diagnoses during the pendency of the appeal. There was no follow-up to fully evaluate the Veteran to clarify whether he has a current psychiatric diagnosis. Therefore, the opinion is less than fully responsive to the remand directives, and is inadequate for rating purposes, requiring corrective action. See Stegall, 11 Vet. App. at 271. An examination to clarify the diagnosis/reconcile the conflicting evidence and etiology of all psychiatric diagnoses during the pendency of the appeal, is necessary. The matter is REMANDED for the following: 1. Secure for the record complete updated (to the present, all outstanding) clinical records of VA evaluations or treatment the Veteran has received for psychiatric conditions. 2. Then, arrange for the Veteran to be examined by a psychiatrist or clinical psychologist (who has not previously examined him), to determine the nature and etiology of any psychiatric disability he may have. The Veteran’s VA record must be reviewed by the examiner in connection with the examination. All clinical findings must be reported in detail. On review of the record (to include the Veteran’s psychiatric complaints and treatment in service), the examiner should: (a.) Identify by diagnosis (in accordance with DSM-5) each psychiatric disability found or shown by the record during the pendency of this claim. Specifically, does he meet the DSM-5 criteria for a diagnosis of PTSD based on personal assault? The examiner should discuss the stressor(s) relied upon to support any diagnosis, to include whether the evidence of record supports that a personal assault (such as he describes) occurred in sertvice. If an acquired psychiatric disability is not found, reconcile that conclusion with the diagnosis by the September 2015 VA examiner and notations in treatment records (including in September 2019) that the Veteran was assigned a diagnosis of an acquired psychiatric disability (during the pendency of this appeal). (b.) Regarding each psychiatric disability entity other than PTSD diagnosed, opine whether it is at least as likely as not (a 50 percent or greater probability) that it is etiologically related to the Veteran’s service or was caused or aggravated by a service-connected disability? If not, identify the etiology considered to be more likely, and explain why that is so. All opinions must include rationale. If an opinion cannot be provided without resort to mere speculation, the examiner must explain why speculation is required. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.