Citation Nr: 21071163 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 17-28 046 DATE: November 30, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include on a secondary basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board denied this claim in December 2017, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the December 2017 decision and remand the matter to the Board. The Board remanded the claim for development in May 2019, August 2020, March 2021, and July 2021. As explained below, the Board regretfully finds that a remand is necessary for additional development. 1. Service Connection for an Acquired Psychiatric Disorder is Remanded. In the recent July 2021 remand, the Board found that the May 2021 VA addendum opinion was inadequate for discrediting the Veteran's prior diagnosis of an acquired psychiatric disorder, and instructed the AOJ to obtain another opinion, preferably from an examiner who has not previously examined the Veteran. The Board asked that the new opinion address whether any acquired psychiatric disorder diagnosed anytime during the Veteran's claim was related to service, to include as secondary to his service-connected tinnitus. The Board also asked that for the purposes of the opinion provided, the examiner be informed that the Veteran's March 2015 diagnosis of acquired psychiatric disorder be assumed as an appropriate finding supported by the record. Unfortunately, the addendum opinions obtained in July 2021, September 2021, and October 2021, respectively, were provided by the same May 2021 examiner who again concluded that the Veteran does not have a current psychiatric diagnosis. In the July 2021 opinion, the examiner opined that the record was devoid of symptoms of depression as far back as December 2004. However, the Veteran reported symptoms of anxiety and depression related to tinnitus in March 2015, and made reports of depression and anxiety in February 2016. In the September 2021 addendum opinion regarding secondary service connection, a rationale was not provided. In the October 2021 addendum, the examiner opined that the Veteran does not have any psychiatric symptoms and his diagnosis of adjustment disorder in March 2015 was reactive to the Veteran's situation and was expected to clear up as stressors remitted. However, this does not account for why the Veteran had similar symptoms in February 2016. Based on the foregoing, the Board finds that there was not substantial compliance with the July 2021 remand directives and an addendum VA medical opinion should be obtained from a different examiner. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his acquired psychiatric disorder claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner, other than the same May 2021 and October 2021 examiner, to offer an opinion regarding the etiology of any diagnosed acquired psychiatric disorder. The claims file should be made available to the examiner for review. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder diagnosed anytime during the Veteran's claim was incurred in, or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any acquired psychiatric disorder diagnosed anytime during the Veteran's claim is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected tinnitus. For purposes of this examination opinion, the examiner is asked to assume the Veteran's March 2015 acquired psychiatric disorder diagnosis is appropriate and supported by the record. In offering the opinion, the examiner is asked to consider treatment record where the Veteran was prescribed medication for antidepressant in February 2016 and March 2016. He reported symptoms of depression and anxiety in February 2016. He also reported anxiety and depression related to tinnitus in March 2015. The Veteran's lay statements regarding onset and continuity of symptomology should be recorded and considered. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.