Citation Nr: 21073136 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-26 679 DATE: December 7, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from November 1965 to September 1967. This matter comes to the Board of Veterans' Appeals (the Board) following an October 2014 rating decision in which the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for entitlement to service connection for depression. The Veteran's appeal was most recently before the Board in June 2021 when it was remanded for a new Department of Veterans Affairs (VA) examination and a medical opinion. This VA examination was conducted in June 2021, and the appeal has now returned to the Board. Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), to include as secondary to a service-connected disability, is remanded. The Veteran contends that his acquired psychiatric disorder is due to his military service. Specifically, he reports that he experienced symptoms of depression and anxiety during active service, and that they reemerged later in life due to the development of his health issues. He also asserts that his acquired psychiatric disorder is secondary to his service-connected disabilities, to include his left testicle removal associated with left inguinal hernia repair with scar. The Veteran has been diagnosed as having current an acquired psychiatric disorder, to include an adjustment disorder and depressed mood, during the appeal period. See, e.g., VA examination report (April 2019). In June 2021, the Board remanded the Veteran's appeal for a new VA examination to determine the nature and etiology of the Veteran's acquired psychiatric disorder. Specifically, the examiner was asked to determine whether it is at least as likely as not that the Veteran's acquired psychiatric disorder: (1) had its onset during active service or is otherwise related to an in-service disease, event, or injury, to include his in-service diagnosis of emotionally unstable personality; (2) is proximately due to a service-connected disability; and (3) has been aggravated (worsened beyond its natural progression) by a service-connected disability. The examiner was also directed to discuss lay statements from the Veteran and his wife regarding the effect that his service-connected left testicle removal had on his sex drive/ability to have sex and issues related to prostate cancer. The Veteran received a new VA examination in June 2021. For the following reasons, however, the Board concludes that this examination did not substantially comply with the Board's June 2021 remand directives, as the June 2021 opinion is flawed. Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to service connection on a direct basis, the June 2021 VA examiner opined that the Veteran's acquired psychiatric disorder was less likely than not incurred in or caused by service, to include as due to his in-service diagnosis of "emotionally unstable personality." The examiner, essentially, reasoned that the Veteran "did not have continuity of symptoms throughout his post-military career." The examiner noted the Veteran's August 1967 STR that shows a diagnosis of emotionally unstable personality and the Veteran's reports that his depression and anxiety began during service. The examiner failed to address/explain why the Veteran's current acquired psychiatric disorder is not due to his to in-service emotionally unstable personality diagnosis or his in-service anxiety and depression sympoms, but rather relied on the absence of psychiatric symptoms after service. As to service connection on a secondary a basis, the June 2021 VA examiner opined that the Veteran's acquired psychiatric disorder was less likely than not caused or aggravated by his service-connected left testicle removal. In his rationale, the examiner stated that he was unable to determine how the removal of the Veteran's left testicle contributed to his current mental health condition without resorting to speculation, noting that the Veteran's acquired psychiatric disorder is "at least as likely as not due to his many health issues", and that he was unable to differentiate the effects of the Veteran's various health issues have on his mental health. Additionally, the examiner indicated that the Veteran's "left testicle removal has contributed in some way to his mental health difficulties" but that he was unable to separate how they each differentially impact his mental health. Notably, in the examiner rationale for direct service connection, the examiner stated that the Veteran's acquired psychiatric disorder "is at least as likely as not due to his various health issues." The examiner's rationale for secondary service connection is contradictory and does not provide sufficient information for the Board to decide the Veteran's claim. The United States Court of Appeals for Veterans Claims (the Court) has held, however, that it must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitationwhether based on lack of expertise, insufficient information, or unprocured testingof the individual examiner. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall, 11 Vet. App. at 271. As the medical opinion proffered in June 2021 did not adequately address the issue of service connection for an acquired psychiatric disorder, on a direct and secondary service connection basis, a remand is necessary to obtain an adequate opinion. The matters are REMANDED for the following action: Obtain an opinion regarding the Veteran's claim of service connection for an acquired psychiatric disorder. Following a review of the claims file, the clinician should opine on the following: (a.) Is it at least as likely as not that the Veteran's acquired psychiatric disorder had its initial onset in service or is otherwise etiologically related to the Veteran's service, to include as due to the Veteran's reports of in-service symptoms of anxiety and depression and/or is due to his in-service diagnosis of emotionally unstable personality. (b.) Is it at least as likely as not that the Veteran's service-connected disabilities (including his service-connected left testicle removal associated with left inguinal hernia repair with scar) were caused or aggravated his acquired psychiatric disorder. The examiner should address the Veteran's VA treatment records showing a diagnosis of a mood disorder due to his general medical condition and the Veteran's and his wife's lay statements, to include statements made at the April 2019 VA examination that the Veteran is worried about "not being a real husband to my wife," and that his service-connected left testicle removal caused prostate cancer and issues with his sex drive/ability to have sex, and his wife's statements regarding a lack of intimacy and issues related to prostate cancer. The examiner must provide a rationale for each opinion. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.