Citation Nr: 21068950 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-57 125 DATE: November 17, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as generalized anxiety disorder) is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1965 to April 1969. In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is of record. When this case was previously before the Board in May 2021, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND Although unfortunate, the Board finds additional development is necessary prior to final adjudication of the issues on appeal. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, in the course of the May 2021 remand, the Board instructed the RO to obtain all outpatient treatment notes from the VAMCs in Marion, Illinois; Louisville, Kentucky; and the Paducah VA Outpatient Clinic. Following that remand, the RO obtained outstanding treatment records from the St. Louis, Phoenix, San Francisco, and Albuquerque VAMCs. The RO also informed the Veteran that outpatient treatment records from the Marion VAMC could not be located by way of a July 2021 letter. However, there is no indication the RO attempted to obtain outstanding treatment records from the Louisville VAMC or Paducah VA Outpatient Clinic. As such, a remand is necessary in order to comply with this prior remand directive. Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the May 2021 remand the RO was also instructed to obtain competent examinations and medical opinions addressing the Veteran's claims. Though the RO obtained a VA mental disorders examination in July 2021, as well as a VA PTSD examination in August 2021, for several reasons these examinations failed to substantially comply with the May 2021 remand directives. In particular, both the July and August 2021 examiners found the Veteran met the diagnostic criteria for a major neurocognitive disorder. As noted in the Board's May 2021 remand, the Veteran's claim has been sympathetically taken to include all acquired psychiatric disorders diagnosed during the pendency of this appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Although the above-noted VA examiners found insufficient evidence during their examinations to warrant a diagnosis of PTSD, anxiety disorder or depression, they did not explain how or why the Veteran's prior diagnoses of these disabilities were invalid, or provide the requested medical opinions addressing those disabilities. Additionally, the Board notes that by way of a June 2021 examination request the RO also asked the July 2021 examiner to comment on whether the Veteran's cognitive disorder was caused or aggravated by his service-connected diabetes mellitus. The examiner also failed to provide this medical opinion. Based on the foregoing, the Board finds substantial compliance with the May 2021 remand directives has not been achieved. As such, a remand is again required. Accordingly, these matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate the Veteran's VA treatment records from 2009 to present; to include treatment at the VAMCs in Louisville, Kentucky and the Paducah VA Outpatient Clinic, as well as any other outstanding records the Veteran identifies. 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to address the etiology of all psychiatric disabilities diagnosed during the pendency of this appeal. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether any psychiatric disability diagnosed during the pendency of this appeal to include PTSD, anxiety disorder, depression, or major neurocognitive disorder at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. With respect to the Veteran's major neurocognitive disorder, based on a review of the Veteran's pertinent history and the examination results, the examiner is also asked to state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) the cognitive disorder: a) was caused by his service-connected diabetes mellitus; or b) was worsened to any degree by his service-connected diabetes mellitus. The examiner must discuss and consider the Veteran's competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.