Citation Nr: 21061716 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 12-23 479 DATE: October 5, 2021 REMANDED Entitlement to a rating in excess of 10 percent for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1984 to December 1988. In an April 2019 decision, the Board denied entitlement to a rating in excess of 10 percent for an acquired psychiatric disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Joint Motion for Remand (JMR), the parties agreed to vacate the April 2019 Board decision and remand the appeal. Previously, in a December 2017 decision, the Board requested the Agency of Original Jurisdiction (AOJ) to schedule to Veteran for a new examination and that the examiner should, "reconcile the current diagnosis or diagnoses made with all previous diagnosis in the record. The examiner's attention is also directed to the January and October 2010 letters submitted by Dr. Liss. Additionally, the examiner should review the March 2015 VA Form 21-0960P-3. See Correspondence entered in VBMS in August 2015 page 9-14. Functional impairment and interference with employability should be addressed. All opinions expressed must be supported by clear rationale, if necessary with citation to relevant medical findings or other evidence in the file." See December 2017 Board decision. However, the May 2021 JMR found that the May 2018 VA examination did not address impairment and interference with employability and the examiner did not support the opinion with a clear rationale. Ultimately, the Court found that the prior remand directives were not complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Thus, remand is required for a new examination that complies with previous remand instructions and allows for a fully informed decision. Additionally, once a veteran raises the issue of a VA examiner's competency and requests an examiner's credentials, the veteran must have the ability to secure from VA the curriculum vitae and other information about qualifications of a medical examiner. See Francway v. Wilkie, 940 F.3d 1304, 1308 (2019). Here, the Veteran called into question the competence of the VA examiner who conducted the May 2018 examination and specifically requested the qualifications of said examiner. See November 2018 Veteran statements. This action, in compliance with Francway, was not completed by the AOJ. As such, remand is required to provide the Veteran with the May 2018 VA examiner's curriculum vitae pursuant to the duty to assist. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his acquired psychiatric disorder that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Provide the Veteran information necessary to assess the competency of the May 2018 VA examiner, including the examiner's curriculum vitae or similar documentation, if otherwise in order. This information is to be associated with the Veteran's claims file. 3. Thereafter, schedule the Veteran for an appropriate examination to assess the current severity of his service-connected acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. The examiner should identify each of the Veteran's psychiatric symptoms and the occupational and social impairment attributable to his service-connected acquired psychiatric disorder. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. Pursuant to the May 2021 JMR, the examiner shall specifically address how the Veteran's service-connected psychiatric condition interferes with employability or otherwise impairs Veteran's ability to perform the mental acts necessary for employment. The examiner is advised that the Veteran is competent to report his symptoms and history. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. (Continued on the next page) 4. After the above has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.