Citation Nr: 21068467 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-18 217 DATE: November 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for substance abuse is remanded. Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1972 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2017. A transcript of the hearing is associated with the claims file. This matter was remanded most recently in April 2021 for action consistent with a Joint Motion for Remand (JMR) submitted by both parties and granted by the United States Court of Appeals for Veterans Claims (Court) in December 2020. Specifically, the Board remanded for an adequate nexus opinion consistent with the February 2018 Board remand directives. Unfortunately, although multiple addendum medical opinions were obtained in June 2021, the Board finds that these opinions do not substantially comply with the Board's remand directives, and further remand is necessary. See Stegall v. West, 11 Vet. 268, 271 (1998). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. 2. Entitlement to service connection for substance abuse is remanded. Per the April 2021 remand directives, the Board directed, in part, that the examiner "[o]pine on whether the Veteran's acquired psychiatric diagnoses diagnosed during the appeal period [] are at least as likely as not (probability of at least 50 percent) etiologically related to active duty military service, to include his credible reports of in-service personal assault." The Board specifically referenced the Veteran's August 2015 mental health treatment and diagnoses and further directed the examiner to provide an opinion as to prior psychiatric diagnoses even if the examiner concluded that no present diagnosis is warranted. The June 2021 VA examiner did not substantially comply with this portion of the remand directives. In her June 2021 opinion as to service connection for an acquired psychiatric disorder, the examiner summarized the Veteran's history of drug use, a partial history of his reported stressors, and a history of prior VA PTSD examinations, but neither discussed nor referenced the mental health treatment and diagnoses documented in VA treatment records during the appeal period. The examiner then determined, in contradiction to VA treatment records, that the Veteran "does not render a psychiatric diagnosis," and provided no discussion or opinions as to the Veteran's previously diagnosed psychiatric condition(s). The April 2021 remand directives also directed the examiner to "[o]pine on whether the Veteran has experienced a current substance abuse disability at any time since his disability application was received in March 2009," and, if so, whether it is at least likely as not "that the Veteran's current substance abuse disability is caused by or aggravated by any of his diagnosed acquired psychiatric disabilities?". The examiner did not substantially comply with this portion of the remand directives or sufficiently address whether the Veteran has experienced a substance abuse disability during the appeal period. Instead, the examiner copied the exact summary from the direct service connection opinion for an acquired psychiatric disorder and added it to the secondary service connection causation opinion for substance abuse, with the only addition being "[i]t is my opinion that the claimant's CURRENT SUBSTANCE ABUSE is less than likely than not PROXIMATELY DUE TO AND/OR THE RESULT OF THE VETERAN'S ACQUIRED PSYCHIATRIC DISORDER." The examiner similarly copied the same summary and conclusion and added it to the secondary service connection aggravation opinion, but also included that "[t]here is no evidence of substance abuse diagnosis in the last few years." The examiner did not explain how she would define "in the last few years," did not reference any VA treatment records during the appeal period, and did not provide any rationale for either the causation or aggravation opinions. The Board notes that per VA treatment records as recent as May 2021 the Veteran denied illicit drug use since 1988 but also reported drinking 12 beers per week, and his VA treatment records generally document diagnoses of alcohol abuse in August 2018 and alcohol dependence in October 2008. The Board finds that the April 2021 addendum medical opinions are inadequate and fail to substantially comply with the Board's prior remand directives. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stegall, 11 Vet. At 271. Accordingly, while the Board sincerely regrets the additional delay, further remand is necessary to obtain adequate medical opinions. 3. Entitlement to service connection for hepatitis C is remanded. As the Veteran's claim of service connection for hepatitis C is inextricably intertwined with the claims of service connection for an acquired psychiatric disorder and substance abuse, it must also be remanded. The matters are REMANDED for the following action: Forward the Veteran's claims file to an appropriate VA examiner, other than the VA examiner who provided the June 2021 addendum medical opinions. The examiner must review the complete claims file, including this remand. After a review of the claims file, the examiner must respond to the following: (a.) Are any of the Veteran's acquired psychiatric conditions, diagnosed since the Veteran's March 2009 Application for Compensation and/or Pension, at least as likely as not related to service, to include his credible reports of in-service personal assault? In making this opinion, the examiner must discuss the Veteran's VA treatment records documenting diagnoses for psychiatric conditions throughout the appeal period, including, but not limited to, his August 2015 diagnoses of psychosis, depression, and unspecified anxiety state. The examiner is reminded that "current disability" for VA purposes means that the Veteran has a disability "at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 322 (2007). Even if the examiner determines that the Veteran does not have a present psychiatric diagnosis, the examiner must opine as to all diagnosed psychiatric conditions noted throughout the appeal period. (b.) Does the Veteran have a current substance abuse disability that has manifested at any point since his March 2009 Application for Compensation and/or Pension? The examiner must discuss the Veteran's VA treatment records documenting a possible recent history of potential substance abuse. Again, the examiner is reminded that "current disability" for VA purposes means that the Veteran has a disability "at the time a claim for VA disability compensation is filed or during the pendency of that claim." Even if the examiner determines that the Veteran does not have a present substance abuse disability, the examiner must opine as to any substance abuse disability that manifested during the appeal period. (c.) If the Veteran has a current substance abuse disability, is it at least as likely as not caused or aggravated by any of his diagnosed acquired psychiatric conditions? All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. A discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.