Citation Nr: 21066471 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-03 039 DATE: November 1, 2021 REMANDED The appeal regarding entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, is remanded. REASONS FOR REMAND The Veteran, who is the Appellant in this case, had active service in the U.S. Army from April 1969 to January 1972, including service in Vietnam. He contends that his current psychiatric disability is related to active service. Specifically, he has stated that during Advanced Individual Training (AIT), he slipped while climbing a telephone pole during a training exercise, refused to climb the pole again, that his superior officer threatened to send him to Vietnam, and that he consequently developed anxiety about being sent to Vietnam. In addition, while he was stationed in Vietnam, a fellow service member he had met in Vietnam was sent out to the field and either injured or killed; he does not know if the individual survived. Moreover, while in Vietnam, he witnessed tracer rounds and artillery explosions in the distance, and often heard fire fights in the distance as well. This matter has a very long procedural history and comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). More recently, in January 2020, the Board denied service connection for an acquired psychiatric disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Remand (Joint Motion). In the May 2021 Order, the Court vacated the Board's January 2020 decision and remanded the case back to the Board for compliance with instructions provided in the Joint Motion. A remand is necessary to obtain a new VA examination that complies with the Board's March 2018 remand directives, as the October 2018 VA examination did not. Specifically, in March 2018, the Board determined that a September 2017 VA examination was inadequate and remanded the case to obtain a new VA examination. The Board directed the examiner to address the clinical significance, if any, of the VA treatment for symptoms of anxiety and depression in July and August 1978 and September 1979. A July 1978 VA treatment record reflects that the Veteran sought treatment stating that he needed a prescription for his nerves, also stating that he got upset and took it out on his family. He also reported insomnia. Impression was nervousness and he was referred to the psychiatry clinic. Later that month he was diagnosed with anxiety and prescribed medication. In August 1978, he reported that his nervousness started during his active service after he fell down while climbing a telephone pole. Diagnosis was anxiety/depression. In September 1979, he again reported that his anxiety started when he fell from a telephone pole he had to climb (during active service). The October 2018 VA examiner noted the 1978 and 1979 treatment records, but did not fully discuss what clinical significance, if any, the context within which the 1978 and 1979 VA treatment was provided had on whether the Veteran's psychiatric condition was incurred in or caused by active service, and also relied on an inaccurate premise that the 1978 and 1979 VA treatment was related solely to marital problems/divorce. Therefore, a remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The matter is REMANDED for the following action: Afford the Veteran an opportunity to attend a VA examination with an appropriate specialist regarding the nature and etiology of his psychiatric disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all psychiatric diagnoses. (b.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's psychiatric disability was incurred during or caused by active service? The examiner should address the clinical significance, if any, of the context within which the VA treatment for anxiety and depression in July and August 1978 and September 1979 was provided had on whether the Veteran's psychiatric condition was incurred in or caused by active service. Specifically, in both August 1978 and September 1979, the Veteran reported that his nervousness/anxiety began during active service when he fell from a telephone pole. The examiner is advised that a lack of documentation of treatment during active service or a lack of a formal diagnosis during service cannot serve as the only basis upon which to base a negative nexus opinion. The examiner must also consider the Veteran's competent statements regarding experiencing symptoms since active service, as well as the August 1979, February 2010, and September 2011 lay statements from fellow service members and friends regarding their knowledge of the Veteran's symptoms dating back to active service or shortly thereafter. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. [CONTINUED ON NEXT PAGE] All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.