Citation Nr: 21067338 Decision Date: 11/04/21 Archive Date: 11/03/21 DOCKET NO. 20-08 949 DATE: November 4, 2021 REMANDED Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1968 to March 1970, including verified service in the Republic of Vietnam from March 1969 to March 1970. See DD Form 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran's claim for service connection for an acquired psychiatric disorder was remanded for additional development on October 8, 2020. See BVA Remand (Oct. 8, 2020). After the remand, the AOJ performed further development on the Veteran's claim, including but not limited to obtaining addendum opinions on December 18, 2020. The Veteran was subsequently issued a Supplemental Statement of the Case (SSOC) on December 22, 2020. After the issuance of the December 2020 SSOC, the Veteran and his agent articulated for the first time their request for a hearing before a Veterans Law Judge. See Third Party Correspondence ( Jan. 6, 2021 ). On August 16, 2021, the Veteran was informed that his hearing was scheduled for October 12, 2021. See Hearing Related Correspondence ( Aug. 16, 2021 ). The Veteran did not attend his hearing, and neither he nor his agent have offered an explanation as to why the hearing should be rescheduled. The request for a hearing is considered withdrawn. The Board accordingly reasserts jurisdiction. This appeal is advanced on the Board's docket on account of advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to an acquired psychiatric disorder, to include PTSD, is remanded. In the October 2020 remand, the Board noted numerous inconsistencies in the Veteran's recounting of his personal history. These need not be recounted once more. Ultimately, the October 2020 Board remand directed the AOJ to attempt to obtain records from a certain St. Francis Hospital and, if warranted under the circumstances, then obtain a supplemental opinion to the December 2015 VA examination report. See BVA Remand (Oct. 8, 2020), at Pages 13-16. The Board notes in passing that the St. Francis Hospital records may be unavailable. See Third Party Correspondence (rec'd Dec. 3, 2020 ) (indicating that the hospital ceased operations in 2002, and that medical records should be destroyed no later than October 2007). On December 18, 2020, a VA examiner stated that the Veteran's unspecified depressive disorder "appears at least as likely as not that [his] acquired psychiatric disability was not because of his military service," see VA Exam ( Dec. 18, 2020 ) (rec'd Dec. 21, 2020), at Section III, but also that "Veteran's last exam was in 2015; over 5 years ago. As such, commenting on [his] current [mental health] diagnoses would be resorting to mere speculation. A new diagnosis is needed to assess [his] current diagnoses and if they are in any way connected to his service." See cf. VA Exam ( Dec. 18, 2020 ) (rec'd Dec. 21, 2020), at Section III. No matter how bare and conclusory the negative nexus opinion as to unspecified depressive disorder may be, see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion"), the Board concludes that the examiner stated that a new examination be conducted. This new examination, as deemed warranted in this circumstance, does not appear to be of record. Therefore, the Board concludes that it is precluded from issuing a final determination as to this claim, for the Veteran has not been afforded substantial compliance with the previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Identify all current acquired psychiatric disorder(s) that have been present at any time since April 2011. If PTSD is not diagnosed, the examiner should explain why and reconcile with the diagnosis of PTSD found in the clinical records. (B) If PTSD is diagnosed, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s) and must specifically address whether the Veteran's identified stressor(s) are related to personal assault or a fear of hostile military or terrorist activity; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressor(s). (C) For each currently diagnosed acquired psychiatric disorder, is it at least as likely as not (a 50 percent or higher probability) that such disorder had its onset during or was otherwise related to his service? (D) The examiner should also indicate whether the Veteran manifested a psychosis within one year of his discharge from active duty in March 1970 and, if so, should describe the manifestations of such psychosis. A rationale for all opinions expressed should be provided. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.