Citation Nr: 21066604 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-42 527 DATE: November 1, 2021 REMANDED The service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), depressive disorder, and anxiety disorder (acquired psychiatric disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 2008 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In October 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In April 2020, the Board remanded the case to the Regional Office for further evidentiary developments. However, the Board regrets further, additional delay, as an additional development is required before the Board may render a fully-informed decision on this issue on appeal. In April 2020, the Board remanded this matter for a new VA examination and opinion on the Veteran's psychiatric disability, among other directives. After the Veteran underwent the requisite VA examination in August 2020, however, the VA examiner rendered an inadequate opinion that is was not responsive to the April 2020 Board remand directives. Specifically, for example, in the remand directives, the Board instructed that a VA examiner "[identify all current psychiatric conditions that have been present at the time the claim was filed or at any point during the pendency of this appeal." Further, the VA examiner was asked to indicate whether the Veteran has a current diagnosis of PTSD, depression, or anxiety disorder, and if not, the VA examiner was to explain whether the Veteran was diagnosed with any of these conditions during the pendency of this appeal. By specifically addressing this inquiry, the VA examiner stated that "[the] results from this evaluation were not consistent with a DSM-5 PTSD diagnosis. The Veteran did not endorse symptoms from PTSD Criterion C." (Emphasis Supplied). Further, the VA examiner remarked that the Veteran is diagnosed with unspecified anxiety disorder." However, this response is limited in scope, and it does not address or respond to the question of whether the Veteran has ever had a diagnosis of PTSD or depression, at any time during the pendency of this appeal. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Additionally, in opining that it is less likely than not the unspecified anxiety disorder had its onset in, or is otherwise related to the Veteran's military service, to include his combat service in Afghanistan, the VA examiner solely relied on the Veteran's statements as the rationale for this opinion. Even though the VA examiner acknowledged that the Veteran reported that the onset of his anxiety occurred months after being discharged, the VA examiner did not consider or address his medical history, service treatment records, or post-service treatment records, in rendering an opinion. In particular, the April 2020 remand directives also instructed that the VA examiner consider July 2017 lay statements from the Veteran's mother, VA mental health counseling records, and prior VA examination reports. However, the VA examiner did not address any of these pieces of evidence, in providing a rationale for his opinion. As a matter of law, a Board remand affords a Veteran or other claimant the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, as this August 2020 VA opinion is inadequate, and pertinently, it did not substantially or substantively comply with the April 2020 remand directives, another remand is required for substantial compliance, and more specifically, for the Regional Office to obtain a supplemental VA opinion on the etiology of the Veteran's psychiatric disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion on the etiology of the Veteran's acquired psychiatric disability. The VA examiner must review a complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: a. In addition to an anxiety disorder, clearly explain whether the Veteran has been diagnosed with PTSD and/or depressive disorder at any time from November 27, 2015 (within one year of the November 26, 2016 claim for a psychiatric disability) to the current period, even if the Veteran is no longer diagnosed with either disability. i. In undertaking this assessment, consider all VA treatment records which suggest that the Veteran has a history of PTSD and depressive disorder, including and not limited to, a December 2016 psychiatry medication management note, as well as a March 2017 psychology note. ii. If there are any discrepancies with findings that indicate that the Veteran was diagnosed with PTSD and depressive disorder, at any point during the pendency of this appeal, please provide a rationale for the discrepancy. b. Then, for each psychiatric disability, diagnosed at any time from November 27, 2015 to the current period, opine whether it is at least as likely as not (more than 50 percent probability) the pertinent psychiatric disability is the result of an in-service injury, illness or event, including the Veteran's combat service in Afghanistan; was incurred in active service; and/or is otherwise related to his active service. c. In rendering an opinion, please consider all pertinent evidence, including and not limited to the following: i. The Veteran's lay statements, including his testimony from the October 2019 hearing. ii. July 2017 lay statements from the Veteran's mother. iii. VA mental health counseling records. iv. All prior VA examination reports. d. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resorting to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.