Citation Nr: 21064755 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-18 215 DATE: October 21, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1971 to April 1977, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was initially before the Board in September 2019, at which time the Board denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted a Joint Motion for Remand (JMR), vacating the Board's decision and remanding the case for further action consistent with the terms of the JMR. The Board subsequently remanded this matter in January 2021 and June 2021 for additional development. Unfortunately, as discussed below, the Board is not satisfied that there has been substantial compliance with the most recent remand instructions. Therefore, the matter must be remanded once again. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, which he contends was incurred in or caused by active service. During the period on appeal, the Veteran has been diagnosed with several psychiatric disorders, to include PTSD, major depressive disorder, unspecified depressive disorder, unspecified anxiety disorder, insomnia disorder, panic attacks, and adult antisocial behavior. With regard to PTSD, the Veteran has reported experiencing the following in-service stressors: (1) being involved with torturing prisoners in the brig while serving as a military police (MP) officer; and (2) being involved in a collision with another ship while stationed onboard the USS Oriskany. The Veteran has also reported the post-service stressor of being bothered by news coverage and seeing soldiers in their uniforms coming back from the Gulf War. See January 2015 VA Examination Report. To date, VA has only verified stressor (2). According to a July 2018 Defense Personnel Records Information Retrieval System (DPRIS) response, on June 28, 1972, the Veteran's ship, the USS Oriskany, had a minor collision with the USS Nitro. While the USS Oriskany suffered structural damage, it was able to continue operations and meet scheduled requirements. Deck logs confirm that there were no personnel injuries due to the collision. In his October 2015 notice of disagreement, the Veteran further explained the basis of his claimed stressor with regard to the collision onboard the USS Oriskany. He explained that one of his jobs was to assemble and move the nuclear bombs on the ship, and that "when [the collision with the USS Nitro] occurred, it felt like we had been hit by a bomb and were going to sink... It was terrifying. It was very scary. It was an extreme experience there." In this statement, the Veteran also described experiencing a general fear of hostile military activity while he was serving in Vietnam and onboard the USS Oriskany while the ship took part in the theater of operations of the war. During this time, the Veteran explained that "[t]here was this constant anxiety about what would happen. We didn't know if we would have to engage in combat activities... We always worried that something might happen. We were there because of the nuclear weapons." In order to comply with the instructions outlined by the parties in the September 2020 JMR, the Board remanded the Veteran's claim for further development in January 2021. In its remand, the Board specifically directed the RO to obtain an addendum VA medical opinion on the Veteran's behalf that adequately assesses (1) the etiology of all psychiatric conditions diagnosed during the pendency of the appeal, to include unspecified depressive disorder and unspecified anxiety disorder, and (2) whether the Veteran's claimed stressor, as described in his October 2015 statement, is related to a fear of hostile military activity. Although a VA examination and medical opinion was obtained on remand in March 2021, the Board found the opinion to be inadequate in its subsequent June 2021 remand. Accordingly, the Board instructed the RO once again to obtain a new VA examination and medical opinion that is responsive to the Board's prior remand directives. In June 2021, the RO sent the Veteran a letter requesting him to provide additional information about his claimed in-service stressors. When the Veteran did not respond to the request, the RO issued a supplemental statement of the case and recertified the appeal to the Board. Review of the record shows that the RO did not attempt to schedule the Veteran for a VA examination or obtain an addendum medical opinion on his behalf. Compliance with Board remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall, 11 Vet. App. at 271. Therefore, because the RO did not comply with the Board's remand directive to afford the Veteran a VA examination and medical opinion, the Board must remand the matter once again for compliance. Accordingly, the matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of all psychiatric disorders diagnosed during the pendency of the appeal (since July 2014), to include PTSD, unspecified depressive disorder, and unspecified anxiety disorder. The examiner must review the Veteran's entire claims file, to include a copy of this (and the prior) REMAND, and that review must be noted. A full history of symptoms must be elicited from the Veteran and documented in the examination report. All appropriate diagnostic testing must be accomplished. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Identify all current acquired psychiatric disorder(s) that have been present at any time since July 2014. If the examiner determines that a diagnosis of PTSD is not warranted, the examiner must explain why and reconcile that finding with the diagnoses of PTSD found on VA examination in January 2015 and in the clinical records. (b) If the examiner confirms a diagnosis of PTSD, the examiner must: identify the specific stressor(s) underlying the PTSD diagnosis; comment upon the link between the Veteran's current symptomatology and his claimed stressor(s); and specifically address whether the Veteran's identified stressor(s) are related to a fear of hostile military or terrorist activity. In this regard, the examiner must specifically address the statements made by the Veteran in his October 2015 notice of disagreement. (c) For all other currently-diagnosed acquired psychiatric disorders (other than PTSD), is it at least as likely as not (a 50 percent or higher probability) that the disorder had its onset during active duty service or was otherwise etiologically related to such service? The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the examiner's report reconcile the evidence of record, to include the Veteran's lay statements, service treatment records, post-service medical records, prior VA examinations and medical opinions, and any other pertinent lay evidence of record. The examiner is advised that the Veteran is competent to report his psychiatric symptoms and history and such reports must be acknowledged and considered in formulating any opinion. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions regarding onset and continuity of symptoms of his psychiatric disorder must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The Board reminds the examiner (and RO) that failure to comply with the directives outlined herein renders an examination report inadequate and will result in further remand of the Veteran's claim. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.