Citation Nr: 21077374 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-19 395 DATE: December 29, 2021 REMANDED The issue of service connection for an acquired psychiatric disorder, claimed as major depressive disorder (MDD), is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1959 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision. In January 2018 and April 2020, the Board remanded the Veteran's claim to obtain VA examinations, as well as outstanding records. The claim has since been returned to the Board for review. Although the Board regrets the delay in yet another remand, the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives and further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). In the April 2020 remand, the Board found that prior VA examinations conducted in October 2016 and August 2019 were inadequate because they were based on a factually incorrect rationale. Specifically, the Board found that the VA examiners did not acknowledge or address the Veteran's inpatient psychiatric hospitalization in 1976. A review of the medical evidence demonstrates that during the 1976 psychiatric hospitalization he was determined to have psychiatric symptoms, including borderline psychotic visionary and spiritual hallucinations, insomnia, and crying spells, and he was diagnosed as having psychiatric disorders, including depressive neurosis. Further, the Board found that the examiners did not properly consider the lay statements of record in determining whether a continuity of symptomatology was established. Following the April 2020 remand, the Veteran was afforded a VA examination in April 2021. The VA examiner determined that there is no evidence to support that the Veteran's MDD is caused by service as he did not relate any traumatic in-service events and the first psychiatric diagnosis in 1994 was not connected to service. The Board notes that the lay statements of records, including statements from the Veteran and his family members, provide a description of a traumatic in-service event as well as descriptions of psychiatric symptoms manifesting during or shortly after discharge from service. The Board finds that the VA examiner did not provide a discussion regarding the lay statements of record to determine whether a continuity of symptomatology was established. Further, the VA examiner relied on the lack of documented evidence of a diagnosis or associated symptoms during and shortly after service, which, alone, should not serve as the sole basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, the examiner stated that the Veteran's first psychiatric diagnosis was in 1994 and did not discuss the 1976 treatment record in this context. Therefore, the Board finds that a new VA examination is required to properly consider the medical evidence regarding the 1976 inpatient psychiatric hospitalization as well as the lay statements of record. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value); Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his acquired psychiatric disorder, including MDD. The claims folder should be made available to and be reviewed by the examiner. The examiner should address the following: a. The examiner should identify all current psychiatric disorders found on examination. For each diagnosis, the examiner should clearly explain how the diagnostic criteria have been met under the DSM-5. b. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. Specifically, including the diagnoses provided during the inpatient psychiatric hospitalization in 1976. c. For any diagnosed psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during, or is otherwise related to, the Veteran's period of active duty service? d. For any diagnosed psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the disorder is caused by the Veteran's service-connected bilateral hearing loss and tinnitus? e. For any diagnosed psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the disorder is aggravated by the Veteran's service-connected bilateral hearing loss and tinnitus? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. The examiner should also consider all lay statements submitted by the Veteran and his family members regarding his disability. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.