Citation Nr: 21075349 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-40 434 DATE: December 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability to include depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to April 1969. The Veteran testified at a May 2018 Board of Veterans' Appeals (Board) hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In February 2021, the Veteran was informed that the VLJ who conducted the May 2018 Board hearing was no longer at the Board. He was given an opportunity to request another hearing and did not respond or request another hearing. As such, the Board has continued adjudication of his claim. This matter was previously remanded the Board in August 2018, July 2020, and June 2021. It now returns for further appellate review. Entitlement to service connection for an acquired psychiatric disability is remanded. Regrettably, the Board finds that another remand is necessary in this case to obtain an adequate VA medical opinion to determine the etiology of the Veteran's acquired psychiatric disability. The Board notes that the claim was most recently remanded in June 2021 to obtain a medical opinion. See June 2021 Board Remand. The Board noted that the prior VA medical opinions from June 2014, October 2019, and December 2020 did not address relevant evidence prior to 2012, in providing a negative nexus opinion. Specifically, the VA examiners found that the Veteran was first diagnosed with depressive disorder in 2012 in finding that his disability was not related to active service, but failed to address the Veteran's June 1992 VA examination which confirmed a diagnosis of posttraumatic stress disorder (PTSD). Id. The Board also noted that no VA examination has addressed whether the Veteran's combat experiences in Vietnam or his in-service automobile accident caused his current acquired psychiatric disorder. Id. Thereafter, the Veteran was provided a VA examination in September 2021 for his acquired psychiatric disability. The September 2021 VA examiner stated that the Veteran's psychiatric symptoms did not meet the diagnostic criteria for PTSD, and that at least six (6) other medical professionals have made the same conclusion. See September 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). He confirmed the Veteran was currently diagnosed with depressive disorder. The examiner provided the following opinion: "IT IS LESS LIKELY AS NOT THAT HIS DEPRESSION IS RELATED TO HIS VIETNAM DEPLOYMENT AND INSERVICE AUTOMOBILE ACCIDENT. There is no documented nexus between his current depression and any in-service event, injury, or illness." Id. (emphasis in original). Upon review, the Board finds that the September 2021 VA medical opinion is inadequate for adjudication purposes because the examiner does not provide the basis for his conclusion. Instead, the examiner provided a conclusory statement without any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008)(noting that a medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.) Additionally, the Board finds that the September 2021 medical opinion is inadequate because the examiner appears to base his negative nexus opinion on the on the absence of evidence, specifically a lack of treatment records. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015)(indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Finally, the Board finds that September 2021 VA medical opinion does comply with the June 2021 Board remand because it did not sufficiently address the combat experiences in Vietnam or the Veteran's in-service automobile accident. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, once the VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, based on the foregoing, the Board finds a remand is warranted for an addendum medical opinion to determine the nature and etiology of the Veteran's diagnosed acquired psychiatric disability. The matter is REMANDED for the following actions: 1. Obtain an addendum medical opinion by the VA examiner, OTHER THAN THE SEPTEMBER 2021 VA EXAMINER, who is an appropriate medical professional, to ascertain the etiology of the Veteran's acquired psychiatric disability. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is requested to provide the following opinions: Whether it is at least as likely as not (a 50 percent or greater probability) that the acquired psychiatric disability was/were incurred in or caused by service combat experiences in Vietnam or his in-service automobile accident. In rendering his/her opinion, the examiner must discuss the following evidence: (a.) the November 1991 statements from the Veteran's wife and mother. (b.) the June 1992 VA psychiatric examination report. (c.) VA Mental Health and Vet Center treatment records. (d.) May 2018 Board hearing testimony. (e.) the May 2018 statements from the Veteran's daughter, son-in-law, and caregiver. Whether it is medically feasible that his current acquired psychiatric disability was caused by his in-service combat experiences in Vietnam or his in-service automobile accident? Do the Veteran's statements regarding his combat experiences in Vietnam or his in-service automobile accident, align with how his current psychiatric disability is known to develop? If the answer to any of the above questions is negative, state why not and on what basis this conclusion was made. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 2. Review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Readjudicate the claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lilly, Gunella 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.