Citation Nr: 21067152 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 12-00 747 DATE: November 3, 2021 REMANDED Entitlement to service connection for a psychiatric disability, including as secondary to residuals of a left foot fracture is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1969 to November 1970. The matter was previously before the Board in December 2015, October 2016, August 2017, September 2019, and December 2020 at which time it was remanded for development. While the Board regrets the further delay, for the reasons stated below, additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a psychiatric disability, including as secondary to residuals of a left foot fracture is remanded. In its August 2017, September 2019, and December 2020 remands, the Board requested that a VA examiner opine specifically as to the etiology of the Veteran's 2009/2010 mental health diagnoses. Several VA examiners have provided addendum opinions, and thrice they have cited the Veteran's lack of a current disability as the basis for a negative nexus opinion. Therefore, it cannot be overstated that a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability is currently in remission or has completely resolved. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Most recently, the Veteran underwent a VA examination in July 2021. The July 2021 VA examiner opined that the Veteran's mental condition was not proximately due to or the result of the Veteran's residuals of left foot fracture. The examiner provided no rationale for the opinion. Thus, it is inadequate. The examiner also opined that the Veteran's mental health condition "WAS at least as likely as not aggravated beyond its natural progression by the Veteran's service-connected residuals of left foot fracture." However, the examiner's limited rationale stated, "the symptoms or condition that the Veteran is experience [sic] are not related to the service. The Veteran denies any symptoms of depression and anxiety." The examiner also endorsed that they could not determine the baseline severity of the claimed diagnosis but that the current severity of the claimed condition was not greater than the baseline. The examiner provided no explanation for these endorsements. In light of these contradictory opinions, the July 2021 examiner was asked with extraordinary specificity to clarify whether the Veteran's documented conditions to include anxiety, depression, disturbances in sleeping pattern, emotional or depressive situation, and nervous condition were at least as likely as not aggravated by the service-connected residuals of left foot fracture. The examiner's complete response was "No, the Veteran retired in 2009 from his job and was having problems sleeping because of his sleep apnea condition that was diagnosed in 2009. There's no evidence that was related to the foot disability." The examiner did not address any condition or symptom other than sleep disturbance. Therefore, the question remains as to whether the Veteran's documented conditions to include anxiety, depression, emotional or depressive situation, and nervous condition were at least as likely as not aggravated by the service-connected residuals of left foot fracture. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of "aggravation" is pertinent in order for the Board to properly adjudicate the Veteran's claim. The Board notes that if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination report). Additionally, the Board acknowledges the Agency of Original Jurisdiction requested a VA Form 21-4142 from the Veteran in December 2020. However, to date, the Veteran has not returned the requested form. On remand, the Veteran should be afforded another opportunity to submit records from Dr. Marcos Rosado del Valle or an authorization for release of information to allow VA to obtain the records on his behalf. The matters are REMANDED for the following action: 1. After securing any necessary authorization, attempt to obtain and associate with the file records of the Veteran's 1970 mental health treatment by Dr. Marcos Rosado del Valle (mentioned during the Veteran's August 2017 VA mental disorders examination). 2. Once the above development is completed, obtain an addendum opinion from a new VA examiner who has no connection to this claim. The examiner is requested to answer the following inquiry only: In 2009 and 2010, when the Veteran was receiving treatment for major depressive disorder, was his service-connected left foot disability, to include any pain, so severe as to cause or aggravate his mental health symptoms? Before answering this question, the examiner should review the history outlined above in the body of this REMAND. The examiner should be aware that it is irrelevant whether the Veteran has been diagnosed with or treated for a psychiatric condition since 2010 as a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability is currently in remission or has completely resolved. The examiner should provide a thorough rationale for any opinion expressed. 3. After ensuring compliance with these remand directives, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman Associate 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.