Citation Nr: 21066341 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-21 140 DATE: October 29, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1971 to July 1976. In May 2019, the Veteran testified at a Board hearing. The transcript is of record. The Board remanded this matter for additional development in May 2020 and May 2021. The claim was remanded, in both decisions, to obtain opinions regarding whether it is at least as likely as not that any diagnosed psychiatric disorder originated during or is otherwise etiologically related to the Veteran's military service. In the most recent remand, the Board specifically requested an addendum opinion that addresses the Veteran's reports in his early treatment with the VA between 2014 and 2015 when he was experiencing depression surrounding his discharge from active service. The Board instructed the VA examiner to list all psychiatric disorders present during the period on appeal and to address medical records where the Veteran reported he was depressed due to his military experiences. The post-remand October 2021 opinion states, "...it can be expected that some residual lack of trust or resentment is to be expected, but these concerns are not sufficient to render a mental health condition or to produce functional impairment." Yet it goes on to state, his "profile appears to be best described by Depressive Disorder, unspecified." Read in conjunction, it is not clear to the Board whether or not the Veteran has a current diagnosed psychiatric disorder, to include depression. This was a directive specifically requested by the Board's prior remand. More importantly, while the post-remand direct opinion generally discusses the Veteran's "residual lack of trust," it relies on the premise that the Veteran denied any significant memory of his military enlistment, almost appearing mostly unaffected." The examiner cited to the Veteran's January 2013 intake assessment noting the Veteran did not recall much for his military experience. However, this is in conflict with the specific medical records the prior Board remand requested the examiner to directly address. These medical records from 2014-2015 indicate the Veteran reported being negatively affected by his military service and experiencing depressive symptoms because of his military service. The Veteran's statements must be addressed in the VA opinion. While a separate opinion for conflicting medical evidence was rendered, it, too, did not directly address this evidence. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, in this case, the post-remand opinion's noncompliance is prejudicial to the Veteran. Id Accordingly, unfortunately, an additional addendum opinion that substantially complies with the Board's prior remand instructions is needed. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum VA medical opinion from a psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder. The entire claims file should be made available to the examiner in conjunction with the examination. The Veteran should only be scheduled for an examination if the examiner determines this is necessary to provide the requested opinions. (a.) The examiner should list all psychiatric disorders present during the time period of the claim (July 2013 to the present) that are consistent with a DSM-V mental diagnosis. (b.) With regard to each identified acquired psychiatric disorder present during the claim, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder originated during or is otherwise etiologically related to the Veteran's military service. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner must consider and discuss the treatment records reflecting consistent grievances pertaining to his time in the military, specifically his negative experiences surrounding the circumstance of his court martial and resulting confinement and his subsequent distrust and fear of authorities. The examiner should specifically address the social work note reporting that the Veteran reverts back to his military experiences in every session and mental health note that the Veteran believes his depression began in military service. See CAPRI Records September 2014; see also CAPRI Records April 2015 and September 2015. 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) G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.