Citation Nr: 21065339 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-30 059 DATE: October 25, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) with insomnia is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO). As explained in its March 2021 remand, the Board finds that the original August 2012 claim for service connection is still pending. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2021. The transcript has been associated with the file. In March 2021, the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD with insomnia for further development. 1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD with insomnia. The March 2021 Board remand directed that an additional examination be requested to determine all of the Veteran's acquired psychiatric disorders since the time his claim was filed and their relation to his active duty service. A remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions and imposes upon the Board a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remand directed the AOJ to "[s]chedule the Veteran for a VA examination for his acquired psychiatric disability with a qualified VA examiner distinct from the examiner who provided the August 2014 opinion. The examiner must review the claims file, including the lay evidence in the hearing transcript. The examination may be provided remotely give the current pandemic precautions." The examiner was asked to: (a.) Identify every DSM-5diagnosisthat has been present at any time since August 2012. (b.) For each identified diagnosis, state whether it is at least as likely as not related to service, including his credibly reported fear for his life during his time as an EOD technician? (c.) For the diagnosis of PTSD specifically, is the credibly reported fear for his life during his duties as an EOD technician sufficient to meet Criterion A? If yes, is this stressor the basis of any diagnosed PTSD? In a written response, the Veteran stated, "I am more than willing to see anyone [who] can help clarify my condition and expedite this process." An April 2021 C&P Exam Detail directs: "ACE process must not be used to complete the DBQ." A medical opinion was provided by a VA examiner in May 2021; however, the opinion appears to be based solely on a review of the record. There is no indication that the Veteran was examined or interviewed. The examination therefore does not substantially comply with the Board's remand directives. Further, the examiner copied inserts from the Veteran's VA medical records into a report indicating prior diagnoses and stated that, "it is less likely as not that these are related to service...." However, no rationale was provided for the Veteran's diagnoses of depressive disorder, unspecified bipolar disorder, and unspecified personality disorder. Rather, the examiner only copied into the report an opinion from the previous August 2014 VA examination which the prior Board decision deemed inadequate. The examiner then stated the Veteran's PTSD is less likely than not related to being in fear for his life as an explosive ordnance disposal (EOD) technician and that his reported stressor was not the basis of his PTSD claim. The Board's March 2021 Remand explicitly stated that Veteran's reported stressor was credibly reported by the Veteran and did not ask the examiner to authenticate such statement. Rather, the Board asked the examiner to determine if this stressor met Criterion A for a PTSD diagnosis. The examiner did opine that "it is less likely as not that his 'credibly reported fear for his life during his duties as an EOD technician' meet Criterion A." The rationale provided is essentially an attack on the credibility of the Veteran's reported fear in service. In essence, the examiner relied on a lack of contemporaneous treatment records in rendering their negative opinions and did not accept the credibility of the reported stressor, as directed by the Board. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The May 2021 medical opinion failed to substantially comply with the March 2021 Board remand directives. As a result, an additional remand is needed. Stegall, 11 Vet. App. 268. The matter is REMANDED for the following action: 1. Provide an examination for the Veteran's claimed acquired psychiatric disability with a qualified VA examiner distinct from the examiners who provided the August 2014 and May 2021 opinions. The examiner must examine the Veteran and review the entire claims file, including the lay evidence in the hearing transcript. The examiner is asked to provide a response to the following: (a.) Identify every DSM-5 compliant diagnosis that has been present at any time since August 2012. (b.) For each identified diagnosis, individually state whether it is at least as likely as not related to service, including his credibly reported fear for his life during his time as an EOD technician? For the purpose of this opinion, the examiner must accept the Veteran's reported fear for his life as an EOD technician as credible. (c.) For the diagnosis of PTSD specifically, is the credibly reported fear for his life during his duties as an EOD technician sufficient to meet Criterion A? If yes, is this stressor the basis of any diagnosed PTSD? Support all opinions with reasoned explanations. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.