Citation Nr: 21067971 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 19-34 666 DATE: November 8, 2021 REMANDED Entitlement to service connection for depression is remanded. Entitlement to service connection for a sleep disorder, claimed as secondary to an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served in the United States Army from April 1951 to April 1953, which included deployment to Korea. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) January 2016 rating decision of the Agency of Original Jurisdiction (AOJ). In August 2020, the Board remanded the Veteran's claims for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the August 2020 remand, the Board finds that there has not been substantial compliance with remand directives. The Board requested that the AOJ obtain a medical opinion regarding the etiology of the Veteran's psychiatric condition. As discussed further below, the August 2021 VA examination obtained by the AOJ is inadequate for adjudication purposes. While the Board regrets the additional delay, a further remand is necessary to assist the Veteran in fully developing his claim. 1. Entitlement to service connection for depression is remanded. The Veteran alleges that his acquired psychiatric disorder is caused by, or otherwise due to, his active duty service. At times during the pendency of the appeal the Veteran has claimed he has depressive disorder as well as obsessive-compulsive disorder (OCD). The Board notes that the record indicates that the Veteran's memory and ability to accurately recall life events has diminished severely. At an August 2021 VA examination, the Veteran was unable to recall the names of his grandchildren, the dates of his prior marriage, or even his post-service occupational history. The examiner noted that the Veteran "had difficulty providing personal historical data in general," and overall was disoriented "to time and space." Unfortunately, for the above reasons, the Board finds that it appears from the record that the Veteran is unable to provide accurate testimony regarding the duration and onset of his mental health symptoms. The Veteran's post-service medical records do not show treatment for any mental health conditions until around 1995, or almost 40 years after he separated from service. It was in the mid-1990s that the Veteran received treatment for depression, though his medical records do not show a diagnosis until around 2011 (though the Board is not discounting the possibility of an earlier onset). A PTSD screen from October 2004 was negative. In August 2021 the Veteran was afforded as VA examination to determine the etiology of his acquired psychiatric disorder. At that time the Veteran was diagnosed with severe major neurocognitive disorder, unspecified, with behavioral disturbance, and that any prior symptoms of depression are now "subsumed under" the new diagnosis. The examiner noted that the Veteran has a "long-standing history" of mental health issues, though he has "very little memory" about it. Based on the review of the Veteran's records, as well as a review of the Veteran's medical records, the examiner concluded that the Veteran's condition is "more likely due to age than in-service stressors." However, the August 2021 examiner's finding that the Veteran's newly diagnosed "severe major neurocognitive disorder" is conclusory. Nor does the examiner address whether the Veteran's "long-standing" mental health problems are caused by, or otherwise due to, his military service. Furthermore, the Board notes that the Veteran's medical records note that he is still diagnosed with a mental health disability (depression) and is receiving treatment for such. The Board is not discounting the diagnosis of a current neurocognitive disorder; however, a clarifying medical opinion is necessary in light of the past and current mental health treatment records that show a diagnosis of (and treatment for) an acquired psychiatric disorder. As such, a further remand is necessary to assist the Veteran in fully developing his claim. 2. Entitlement to service connection for a sleep disorder, claimed as secondary to an acquired psychiatric disorder is remanded. The Veteran alleges that his sleep disorder, claimed as obstructive sleep apnea (OSA), is caused by, due to, or otherwise aggravated by his acquired psychiatric disability. The Board notes that presently the Veteran does not have any service-connected acquired psychiatric disability. As the claim for service connection his psychiatric condition is being remanded for additional development, the Board finds that his claim of entitlement to service connection for a sleep disorder is inextricably intertwined with his psychiatric disability claim, and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriately qualified examiner to determine the etiology of the Veteran's claimed acquired psychiatric disability to include depression. The examiner shall be provided with a copy of the Veteran's claims file, as well as these remand directives. The examiner must provide the following opinions: (a.) Identify all acquired psychiatric disorders documented in the record during this appeal (beginning in 2014). The examiner must address the Veteran's post-service medical treatment records that show complaints of, and ongoing treatment for, conditions such as depression. The examiner should differentiate symptoms of the severe major neurocognitive disorder diagnosed on April 2021 VA examination from the also reported "long-standing history" of mental health issues shown during the pendency of the appeal; (b.) As to all acquired psychiatric disorders identified including depression, state whether it is as least as likely as not (approximately 50 percent chance or greater) that such disorder had its onset in or is otherwise due to the Veteran's active duty military service. The examiner is directed to address all pertinent portions of the Veteran's post-service medical treatment records, and any lay evidence the examiner finds to be competent and/or credible. The examiner must provide a complete rationale for all opinions rendered. If the examiner cannot provide the necessary opinions without resorting to mere speculation, the examiner must explain why that is the case. If the examiner cannot provide the required opinions without an in-person examination of the Veteran, the AOJ shall schedule the necessary examination. 2. Once the above has been completed, the AOJ shall adjudicate the Veteran's claim for service connection for a sleep disorder, claimed as secondary to an acquired psychiatric disorder. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.