Citation Nr: 21072347 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-35 639 DATE: December 2, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression, anxiety, and memory loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in October 2018, and most recently in August 2021. The August 2021 Board remand found that the June 2021 VA mental health examination opinion was inadequate, and an addendum opinion was necessary in order to obtain an adequate opinion. The RO issued a supplemental statement of the case in September 2021. The appeal has now been returned to the Board for further appellate review. This claim has been advanced on the docket pursuant to 38 C.F.R. § 20.900. The Board notes that the Veteran submitted a Decision Review Request for a Supplemental Claim under the Appeals Modernization Act in response to the supplemental statement of the case issued in September 2021. The legacy appeal was pending and had already been certified to the Board. The Veteran did not submit any evidence with the Supplemental Claim request. As such, it is more beneficial for the Veteran that the Board continue with appellate review in the Legacy system. Entitlement to service connection for an acquired psychiatric disorder is remanded The Veteran contends that his psychiatric disorders are related to his service in Vietnam, which caused fear of death, seeing friends die, nightmares, flashbacks, and sleep problems. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Consistent with this, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Per the August 2021 Board remand, an addendum VA mental health opinion was completed in September 2021. The examiner opined that the Veteran's acquired psychiatric disorder was less likely than not incurred in or caused by his military service. The examiner's rationale was based on a lack of evidence of a diagnosis or treatment during military service, and that the Veteran was not diagnosed with a psychiatric disorder until 2002. Therefore, the rationale is based on a lack of evidence. However, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Simply because the Veteran's records do not show a psychiatric diagnosis or treatment during military service, or for many years following service, does not preclude a connection between his current acquired psychiatric disorder and the activities he was involved in during his military service. The record shows that the Veteran was in combat in Vietnam. See Form DD-214. The Veteran has also stated that due to his service in Vietnam he has nightmares, flashbacks, sleep problems, he saw friends die, and was constantly afraid for his life. See July 2018 Form-9. The examiner failed to address the Veteran's lay statements when providing a rationale for the opinion. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on the foregoing, the Board finds the September 2021 addendum opinion inadequate. See Barr; see also Stegall. Accordingly, remand is warranted for further development. Upon remand, the Veteran should be afforded a new in-person VA mental health examination allowing him an opportunity to discuss with the examiner the impact his service in Vietnam has had on him, to include those issues noted above. The matters are REMANDED for the following action: 1. Obtain all relevant VA medical records not currently associated with the record. 2. Schedule the Veteran for an examination with an appropriate VA clinician for the issuance of a medical opinion as to the nature and etiology of his acquired psychiatric disorder. The clinician should thoroughly review the Veteran's entire claims file, including a copy of this Remand. The examiner must be advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner should provide the following: (a.) Identify all diagnosed mental health disabilities. (b.) With respect to each diagnosed psychiatric disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed disorder is related to an event, injury or disease incurred in service. The examiner must specifically address the Veteran's combat service in Vietnam; flashbacks, nightmares, and sleep problems related to his service in Vietnam; witnessing the deaths of friends in Vietnam; the Veteran's fear of being killed in Vietnam; and whether those factors are related to his current acquired psychiatric disorder. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.