Citation Nr: 21069325 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-11 698 DATE: November 18, 2021 REMANDED Entitlement to service connection for anxiety is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to July 1990. This matter comes to the Board of Veterans' Appeals (Board) from a September 2015 rating decision. In April 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In September 2019, December 2020, and May 2021, the Board remanded the matter for further development, to include obtaining a VA examination and medical opinions. In his November 2021 written argument, the Veteran's representative indicated that the negative response provided by the examiner in May 2021 relied solely on her assertion that there were no diagnosed psychiatric disorders during military service as the rationale. The representative stated that the examiner failed to afford due consideration to the appellant's competent and credible lay evidence regarding manifestation of his chronic anxiety symptomatology consistent with the time and place of his active service. The representative also indicated that the examiner failed to address key elements of the record which the Board's remand order directed the examiner to analyze. The representative stated that for these reasons, the opinion on remand was wholly inadequate for VA purposes per the Court's holdings in Nieves-Rodriguez. The Board notes that while the examiner performed the requested examination and provided an opinion, she did not consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. The examiner also did not address whether the Veteran's reports about his symptoms aligned with how the currently diagnosed disability was known to develop or whether the Veteran's reports were generally inconsistent with medical knowledge or implausible. She did not reference the lay statements provided and submitted by the Veteran in support of the claim in her opinion as was required in the remand. Finally, the examiner did not make reference to the Veteran's receipt of a parachute badge in December 1987, the May 2014 VA Form 21-0781 (Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD)) in which the Veteran detailed an incident during jump school, or the December 2019 VA examination at which time the Veteran reported experiencing intense episodes of anxiety when he was exposed to heights. Given the discrepancies with the directives of the Board remand and the opinion rendered by the examiner, along with the representative's argument, further clarification is warranted. The Board errs as a matter of law when it fails to ensure compliance with the instructions of its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), it was held that an examiner is precluded from relying on the absence of medical documentation/treatment as the sole basis for a negative opinion. Id. at 39-40. Given the foregoing, additional development is required. The matter is REMANDED for the following action: Return the claims file to the VA examiner who provided the May 2021 addendum opinion. The examiner must review the claims file. An in-person examination is not necessary unless deemed so by the examiner. The examiner is asked to provide a response to the following: Is the Veteran's anxiety at least as likely as not related to service? (Continued on the next page) When rendering the opinion, the examiner must address and discuss the Veteran's description of his in-service symptoms as well as his post-service symptoms. The examiner must also address and discuss whether the Veteran's reports about his symptoms aligned with how the currently diagnosed disability was known to develop or whether the Veteran's reports were generally inconsistent with medical knowledge or implausible. The examiner must also reference the lay statements and testimony submitted and provided by the Veteran in support of the claim. The examiner must also reference and discuss the Veteran's receipt of a parachute badge in December 1987, the May 2014 VA Form 21-0781 (Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD)) in which the Veteran detailed an incident during jump school, and the December 2019 VA examination at which time the Veteran reported experiencing intense episodes of anxiety when he was exposed to heights. The examiner must provide a comprehensive report including complete rationales for all conclusions reached, and take note of the fact that any negative opinion may not be based solely on the lack of documented evidence of findings in the service treatment records, i.e., the opinion must also consider and address the Veteran's history as stated at the examination and otherwise in the record. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.