Citation Nr: 21065298 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-09 781 DATE: October 25, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to August 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In May 2018, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In October 2018 and May 2021, the issues were remanded for further development. 1. Acquired Psychiatric Disorder The Board remanded this case in May 2021 to afford the Veteran another opportunity to provide additional details about his claimed in-service stressor. In this regard, the Board notes that the Veteran had previously been asked to provide the same information in a prior October 2018 Remand, but he did not respond to those requests. In development of this claim, a May 2021 VA letter requested information regarding his reported in-service stressor. However, he has continued to not respond to the request for additional information. This claim was further remanded to obtain another VA examination, in part, to determine if he had a psychiatric disorder secondary to a service-connected disability. The AOJ was specifically requested to schedule an examination with a psychiatrist or a psychologist so that a full multiaxial diagnosis could be provided. The record shows that the AOJ instead obtained a nexus opinion by a physician's assistant. Additionally, no psychiatric testing was conducted as requested. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). Accordingly, a Remand is necessary to obtain a VA examination in compliance with the directives outlined in the May 2021 Decision. 2. TDIU The claim for a TDIU is inextricably intertwined with the remaining claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records not already associated with the file. 2. Then, schedule the Veteran for a VA examination with a psychiatrist or a psychologist. The examiner must determine whether the Veteran currently suffers from an acquired psychiatric disorder, to include PTSD, depression and/or anxiety. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. If an in-person VA examination is not conducted, the record must be fully documented as to why such examination was not necessary. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. Specifically, state whether each criterion for a diagnosis of PTSD is met. Otherwise, provide a diagnosis for any acquired psychiatric disorder. (b) If a diagnosis of PTSD is appropriate, identify each stressor event upon which the diagnosis is based. (c) With respect to any psychiatric disorder, other than PTSD, found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychiatric disability was caused by, or began during, active duty service. Please explain why or why not. (d) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychiatric disability was (i) caused or (ii) aggravated by a service-connected disability, to include tinnitus, lumbar spine, and bilateral knee disabilities. Please explain why or why not. The examiner is asked to consider the Veteran's lay statements that his service-connected disabilities cause and/or affect his depression. See September 2013 VA Medical Record, April 2017 Social Security Administration Claim, and May 2018 Board Hearing Transcript. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. (Continued on the next page) 3. Thereafter, the RO should readjudicate the claims on appeal, to include the claim for a TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.