Citation Nr: 21077142 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 08-32 942 DATE: December 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from May 1975 to June 1976. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for depressive disorder. The matter was most recently remanded in May 2021. The case has since been returned to the Board for appellate review. 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded. When this issue was last before the Board in May 2021, it was remanded to obtain an addendum opinion addressing the etiology of the Veteran's acquired psychiatric disorder. The remand directed the examiner to review the record, list all the acquired mental conditions the Veteran had been diagnosed with throughout the entire appellate period, and then provide an etiology opinion for all of the diagnosed acquired mental disorders. The remand specifically referenced April 2013 VA medical records which addressed treatment for depression as an example of an acquired mental disorder that the Veteran had been treated for during the appellate period, but which had not been addressed by the January 2021 VA examination report. The Veteran received a new examination in June 2021. The examiner determined that the evidence, which included a review of the record and mental status exam, did not support the diagnosis of an acquired psychiatric disorder other than alcohol abuse. This finding does not comply with the May 2021 Board remand. Specifically, the examiner did not reconcile his finding with the aforementioned records documenting treatment for depression. Although the Veteran's depression may have resolved during the pendency of the claim, which is not clearly stated, evidence of an earlier diagnosis is relevant because the current disability prong of service connection is satisfied when a disability existed at the time the Veteran filed his claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board sincerely regrets the additional delay; however, compliance with remand directives is not discretionary. The Board errs when it fails to comply with the previous Board remand. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the May 2021 remand was not complied with, and in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. Id. (CONTINUED NEXT PAGE) 2. Entitlement to a TDIU is remanded. Whether the Veteran is entitled to service connection for an acquired psychiatric disorder impacts his combined disability rating and whether he satisfies the criteria for a TDIU. Thus, the Board cannot at this time adjudicate his claims for a TDIU because it is remanding the Veteran's claim for service connection for an acquired psychiatric disorder. Where, as here, the issues are inextricably intertwined, a remand is necessary. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Forward the claims file, a copy of this remand, and a copy of the May 2021 remand to an appropriate examiner for completion of an addendum opinion for the Veteran's acquired psychiatric disorder. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following a review of the record, the examiner is asked to: (a.) Identify all psychiatric disorders present during the pendency of the appeal. If no diagnosis made, the examiner must reconcile such a finding with the 2013 records showing treatment for depression. (b.) For each psychiatric disorder presently diagnosed or existing during the appeal period, provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diagnosed psychiatric disorder is proximately due to, or the result of, the Veteran's service-connected knee or back disabilities. (c.) For each psychiatric disorder presently diagnosed or existing during the appeal period, provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diagnosed psychiatric disorder underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected knee or back disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "increase in disability" need not be permanent. A full rationale must be provided for any opinion offered and a thorough explanation would be helpful for the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After undertaking the development directed above, adjudicate the Veteran's entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.