Citation Nr: 21062218 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-52 255 DATE: October 6, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability claimed as post-traumatic stress disorder (PTSD) and depression to include as secondary to the Veteran's service-connected deep vein thrombosis (DVT) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1979 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the Veteran's above claim in a December 2018 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (Court), and in December 2019 the Court vacated the December 2018 Board decision regarding the above issue, and returned the case to the Board for action consistent with its memorandum decision. The Board then remanded the claim in May 2021 for further development. When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Acquired Psychiatric Condition As part of the May 2021 remand, the Board required the RO to obtain a medical opinion to identify all of the Veteran's current psychiatric disorders and address their etiology to include whether any psychiatric conditions were related to service or secondary to his service connected DVT. While the RO obtained a May 2021 VA medical opinion, with a July 2021 addendum, for the Veteran's claimed psychiatric disabilities, the Board finds it to be inadequate. Specifically, the Board notes that the May 2021 examiner who provided the July 2021 addendum opinion also provided the earlier February 2021 VA medical opinion. While the examiner provided a negative nexus opinion regarding direct and secondary causation, as part of her rationale in all three opinions she indicated "of note the Veteran was previously denied service connection for his PTSD claim" and "It is notable that the Veteran was previously denied service connection for both DVT and PTSD and depression in 2015 due to lack of evidence." The Board notes that the Veteran's earlier denials were predicated in large part on the fact that he was not service connected for DVT. However, in a November 2020 rating decision, the Veteran was granted service connection for DVT. As such, the examiner's rationale providing a negative nexus for the Veteran's claimed psychiatric conditions because in 2015 the Veteran was denied service connection for DVT is inadequate. As the Board does not know how heavily the examiner relied on the previous denials in formulating her opinions, the Board must find these opinions inadequate for adjudication purposes. As such, the Board finds that new medical opinions are required which do not rely on the Veteran's previous denials of service connection in support of their rationale. The matters are REMANDED for the following action: Obtain a medical opinion, from a qualified VA examiner who has yet to examine the Veteran with sufficient expertise to comment on the etiology of the Veteran's claimed acquired psychiatric disorders. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner must provide opinions as to the following: a) The examiner should identify and list all current psychiatric disorders, including whether the Veteran meets the criteria for a diagnosis of PTSD or unspecified depressive disorder. If a diagnosis of PTSD is not established based on the DSM criteria, the examiner should discuss the diagnoses of PTSD found throughout the record, including in the private medical opinions dated August and September 2013. If PTSD is diagnosed, the underlying stressor must be identified. b) For each psychiatric disorder identified the examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disabilities originated during the Veteran's period of active duty service or are otherwise etiologically related to his active duty service. This is to specifically include whether they are etiologically related to the jump accidents the Veteran experienced in service. c) For each psychiatric disorder diagnosed the examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disability was proximately due to, aggravated by, or otherwise etiologically related to the Veteran's service-connected DVT. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.