Citation Nr: 21074785 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-13 503 DATE: December 16, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1980 to January 1984. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter on May 2018, October 2018, and September 2019 for additional development. Then, in a February 2020 decision, the Board denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (the Court). In a December 2020 Order, the Court granted a Joint Motion for Remand (JMR) which vacated the Board's February 2020 decision and remanded the matter for readjudication consistent with instructions outlined by the parties in the JMR. In June 2021, the Board remanded the claim for further development. As discussed below, there has not been substantial compliance with the June 2021 remand instructions, so the matter must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for an acquired psychiatric disorder is remanded. Initially, in a November 2021 the written brief, the Veteran's representative pointed out that the September 2021 VA examiner had just over a year of experience. He then questioned the September 2021 psychologist who conducted the VA examination with regard to his experience and expertise, essentially calling into question the examiner's qualifications. In Francway v. Wilkie, the Federal Circuit held that if a veteran requested information regarding the examiner's qualifications, VA must, absent unusual circumstances, provide information concerning the examiner's qualifications as part of the duty to assist. 930 F.3d 1377, 1380 (Fed. Cir. 2019). Accordingly, a remand is warranted to obtain, associate with the claims file, and provide to the Veteran and his representative for review the September 2021 VA examiner's curriculum vitae and any other additional information regarding his qualifications. In addition, the September 2021 VA examiner indicated that the Veteran attributed his depression to his chronic back pain and nerve damage. As noted by the Veteran's representative, the record is missing the Veteran's January 19, 2011 VA back examination. Although the Veteran is not service connected for a back disability, to the extent there may be information in the examination report that is relevant to the claim for an acquired psychiatric disorder, such report would be pertinent to the claim on appeal. On remand, the RO should obtain and associate with the claims file the January 19, 2011 VA back examination report, and also send a copy of the report to the Veteran and his representative. In addition, the Board finds that the September 2021 VA examination is inadequate as the examiner did not address the Veteran's contention that his depression was also secondary to his service-connected right shoulder condition. He also did not address the Veteran's contention that the onset of his depression occurred during service and manifested in his documented behavioral problems. Furthermore, the September 2021 VA examiner did not address the October 2016 lay statement by the Veteran's cousin, A.S., who indicated that he witnessed the Veteran's depression symptoms manifest during and after his service. Accordingly, an addendum opinion is warranted. The matter is REMANDED for the following actions: 1. Associate with the claims file a copy of the Veteran's January 19, 2011 VA back examination report. Also, send a copy of the report to the Veteran and his representative. All actions undertaken to obtain such report must be associated with the file. 2. Obtain a copy of the curriculum vitae of the September 2021 VA examiner and any other available information regarding the examiner's qualifications, provide the Veteran and his representative with a copy, and associate any such information with the claims file; if the information is not obtainable, the Veteran and his representative should be notified, and the reasons for such should be documented in the record. 3. Forward the Veteran's claim file to the VA examiner who examined the Veteran in September 2021, or if unavailable, to another appropriately qualified clinician, to provide an addendum medical opinion regarding the nature and etiology of the Veteran's depression. An in-person examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. The examiner should provide an opinion addressing the following: (a.) is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder, to include depression, is related to his active duty service. (b.) is at least as likely as not (50 percent or greater probability) that the Veteran's depression was caused or aggravated by his service-connected right shoulder disability? (c.) is at least as likely as not (50 percent or greater probability) that the Veteran's depression was caused or aggravated by his service-connected right shoulder disability? When providing these opinions, the VA examiner should be sure to address both (1) the Veteran's contention that his depression initially manifested as behavior problems documented during service and (2) the statement by A.S., the Veteran's cousin, attesting to noticing the Veteran's depressive symptoms during and after service. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.