Citation Nr: 21001535 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-07 407 DATE: January 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from July 1978 to November 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Board denied the claim for entitlement to service connection for MDD in March 2019. In April 2020, the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMPR), which vacated the portion of the March 26, 2019 Board decision that denied entitlement to service connection for MDD and remanded the matter. At an August 2018 Board Hearing, the Veteran testified before a Veteran Law Judge (VLJ) via videoconference, a transcript is of record. In November 2020, the Veteran was notified that the VLJ who conducted the August 2018 hearing was no longer employed by the Board. He was offered the opportunity for a new hearing. He was advised that if he did not respond within 30-days the Board would assume that he did not want an additional hearing. To date, the Veteran has not responded. The Veteran’s claim has been expanded to include an acquired psychiatric disorder under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In the March 2019 BVA Decision, the Board determined that the Veteran had a current diagnosis of MDD but that he did not fulfill the second requirement of service-connection, i.e. an in-service incurrence or aggravation of a disease or injury. The Board found that the Veteran’s accounts concerning the etiology or origins of his MDD were not credible. Reference was made to a September 2013 statement wherein the Veteran reported his depression started when he entered the Army after basic training. However, at the August 2018 Board hearing, it was observed that the Veteran made the contradictory statement that he first started experiencing problems with depression or a psychiatric condition post-service, when he came back from Desert Storm. In the April 2020 JMPR, the Parties agreed that the Board failed to provide an adequate statement of reasons and basis for its finding that the Veteran’s accounts concerning the etiology of his MDD were not credible to due inconsistencies. Reference was made to a letter from the Appellant’s sister, who clarified that his symptoms began in 1979 and his symptoms were not quite as severe until after he returned from Desert storm. The Parties agreed that the Board erred in not addressing this statement. The October 2014 statement from the Veteran’s sister recalls the concerns her family had with respect to the Veteran’s mental state shortly after he entered service. She said there were other times over the next 15 years where he would call home and complain of physical and mental fatigue. She said the severity of his feelings of hopelessness and fear seemed worse after he returned from Desert Storm. Given her competency to report such events, the Board finds that the statement provided by the Veteran’s sister is sufficient to satisfy the second element of service connection. Regarding the nexus, the Board finds that there is insufficient evidence of record to render a decision. The Veteran was provided a PTSD VA examination (VAX) in December 2011 that diagnosed him with MDD and assessed the severity of the condition. However, the VAX provided did not address whether the Veteran’s MDD was related to service. Whenever VA undertakes to either provide an VAX or to obtain an opinion, it must ensure that the VAX or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the VAX was inadequate, and another VAX is needed. The matters are REMANDED for the following action: Schedule the Veteran for a VAX (in person or via telehealth) to ascertain the nature and likely etiology of his diagnosed MDD as well as any other diagnosed psychiatric disorder that may be diagnosed. The record and a copy of this remand must be made available and reviewed by the examiner. The examiner should provide an opinion that responds to the following: Whether it is at least as likely as not (a 50 percent or greater probability) that MDD or any other diagnosed psychiatric disorder had it initial onset in service or is otherwise etiologically related to service. The VA medical examiner should consider and discuss the lay evidence of record. Rationale for all requested opinions shall be provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.