Citation Nr: 21066127 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-22 836 DATE: October 28, 2021 REMANDED 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, major depressive disorder, and anxiety disorder is remanded. 2. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1989 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2015 and November 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was last before the Board in October 2020 when it denied entitlement to service connection for an acquired psychiatric disorder and remanded the issue of service connection for a right knee condition for evidentiary development. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Order, granting a June 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's October 2020 decision concerning entitlement to service connection for an acquired psychiatric disorder for further development in compliance with the directives specified in the JMPR. 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, major depressive disorder, and anxiety disorder is remanded. In the June 2021 JMPR, the parties agreed that the Board erred when it failed to comply with the February 2019 remand directives. The parties specifically indicated that the VA did not comply with the February 2019 Board remand when it did not attempt to obtain the Veteran's service treatment records (STRs) generated in connection with his December 1989 evaluation underlying his separation from service. The parties acknowledge that the VA attempted to obtain these service records through the Private Medical Records Retrieval Center, resulting in the request being rejected because it listed non-private providers; however, there is no indication in the record that VA made further attempts to obtain the Veteran's STRs from the appropriate repositories. Given that the prior Board remand directives required VA to contact the appropriate record repositories for the Veteran's STRs and it did not do so, the Board failed to ensure VA substantially complied with the prior remand. The parties to the June 2021 JMPR further argued that the January 2020 VA examination is inadequate because the examiner failed to provide an adequate rationale for his opinion that the Veteran's psychiatric conditions were not caused by or related to service. In this respect, the parties detailed that the January 2020 VA examiner did not address any of Veteran's claimed in-service stressors when determining that his acquired psychiatric disorder was less likely than not incurred in or caused by the claimed in-service event, injury, or illness. See July 2021 CAVC Decision pg. 4. Once the Secretary undertakes the effort to provide an examination, he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination is inadequate where the examiner ignores lay evidence concerning the occurrence of an in-service injury and where the Board does not address the credibility of that lay evidence. Miller v. Wilkie, 32 Vet. App. 249, 262 (2020). Accordingly, in light of the JMPR directives, the Board finds that this matter must be remanded to attempt to obtain the Veteran's service treatment records (STRs) generated in connection with his December 1989 evaluation underlying his separation from service, and to provide the Veteran with an updated VA medical opinion to determine the etiology of the diagnosed psychiatric disorder, to include specifically addressing the reported stressors during service. 2. Entitlement to service connection for a right knee disability is remanded. With regard to the Veteran's right knee diagnosis, the Board finds the October 2020 examiner's negative nexus opinion inadequate. This determination is based on the fact that the examiner relied on the absence of medical evidence showing chronicity of care during service as the sole bases for his negative nexus opinion. Miller v. West, 11 Vet. App. 345 (1998). Furthermore, while the October 2020 VA examiner provided a negative aggravation opinion for secondary service connection, the rationale merely detailed the relevant medical evidence of record with no explanation as to how the evidence informed the opinion. Thus, a new aggravation opinion is warranted. The matters are REMANDED for the following action: 1. Contact the appropriate records repositories to attempt to obtain the Veteran's outstanding service treatment records generated in connection with his December 1989 evaluation underlying his separation from service, and document any negative responses received. 2. Schedule the Veteran for an appropriate VA psychiatric examination to assist in determining the presence, nature, and cause of his current psychiatric disorder, to include generalized anxiety disorder. If an examination is deemed necessary in the judgment of the clinician designated to provide the addendum opinion, one should be arranged. The claims file must be made available to the examiner for review in connection with the examination. The examiner should render an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder had its onset in service or is otherwise medically related to in-service injury or disease, including a December 1989 diagnosis of personality disorder underlying his separation from service. In rendering his/her opinion, the examiner should specifically address the Veteran's claimed in-service stressors. 3. Obtain an addendum opinion from a VA examiner with the appropriate medical expertise (other than the one that performed the October 2020 examination) to determine the nature and etiology of the Veteran's diagnosed right knee strain. The record and a copy of this Remand must be made available and reviewed by the examiner. The need for another examination of the Veteran is left to the discretion of the examiner selected to provide the opinion. After a review of the record, the examiner should provide responses to the following: whether it is at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's diagnosed right knee strain originated during, or is etiologically related to, active-duty service. If a negative opinion is offered based primarily on the length of time between the Veteran's military separation and the current diagnoses or an absence of evidence, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any right knee disorder is not related to service. whether it is at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's service-connected right knee condition was permanently increased in severity beyond its natural progression (i.e. aggravation) by his service-connected left knee condition. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The Agency of Jurisdiction (AOJ) should ensure compliance of the foregoing and any other necessary development, and then readjudicate the Veteran's claims. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.