Citation Nr: 21005774 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 10-15 412 DATE: February 2, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1960 to November 1962. In November 2010, the Veteran testified at a hearing before a local Decision Review Officer (DRO) and a transcript of the proceeding is of record. In March 2015, February 2017 and November 2018, the Board remanded the issue on appeal for further development. Specifically, in March 2015 the Board instructed the Regional Office (RO) to contact the National Personnel Records Center (NPRC), and request that it conduct a search for any in-patient and outpatient clinic records related to the Veteran’s psychiatric condition, including separately filed hospital and treatment records. The RO submitted a request to the NPRC in May 2015, via the Personnel Information Exchange System for any service medical and dental records, and service personnel records, using request code O50. However, as noted by the Board in its remand, psychiatric treatment records may be stored separately from other service treatment records. Thus, in the February 2017 remand, the Board found that the general request for the Veteran’s service medical records did not satisfy the Board’s directive to specifically request any separately held psychiatric treatment records, and the Board again requested that the RO file a request for outpatient psychiatric treatment records via the Personnel Information Exchange System using code C01-V. In July 2017, the RO contacted the NPRC, however the NPRC indicated that “no records were located.” The RO then sent a notice to the Veteran in April 2018 requesting that the Veteran submit any specific evidence to support his claim to include any military facility where the Veteran received outpatient psychiatric treatment and the dates of such treatment. However, the Veteran did not respond to the requests. The Board finds that the RO has substantially complied with the Board’s directives in this regard, and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Furthermore, in the February 2017 remand, the Board noted that a copy of the Veteran’s September 2011 notice of disagreement (NOD) regarding the June 2011 rating decision that denied PTSD is not in the claims file. The Board requested that the RO associate the NOD with the file. However, in April 2018, the RO notified the Veteran that they were unsuccessful in locating his September 2011 NOD and requested that if he had a copy in his possession that he provide it to them to associate with the file. However, again the Veteran did not respond. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”) Therefore, the Board finds that the RO has substantially complied with the Board’s directives in this regard, and no further action is necessary. In the November 2018 remand, the Board requested that an addendum opinion be obtained as it found that the prior April 2018 medical opinion was inadequate. Unfortunately, the Board finds that for the reasons outlined below an additional remand is necessary as its prior instructions were not substantially complied with. Stegall, 11Vet. App. at 268.   Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C.§ 5103A; 38 C.F.R.§ 3.159. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11Vet. App.at 268. Historically, in February 2017, the Board remanded the issue for the reasons discussed above but also in order to obtain a supplemental medical opinion. The Board found that an opinion to determine whether the Veteran has a current diagnosis of PTSD under the criteria set forth in American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM –IV) should be obtained. The Board noted that in the March 2016 VA medical opinion, the examiner stated that the Veteran did not have a diagnosis of PTSD under the DSM-V criteria. However, the DSM-IV rather than the DSM-V criteria apply in this case. See 79 Fed. Reg. 45093-92 (Aug. 4, 2014) (the DSM-V criteria do not apply to appeals certified to the Board or pending before the Board prior to August 4, 2014). Moreover, the examiner did not explain why the criteria for a PTSD diagnosis were not satisfied. The Board further noted that a March 2009 private treatment record reflects a diagnosis of PTSD during the pendency of this claim. In April 2018, an addendum opinion was obtained. However, the examiner again found that the Veteran did not have a diagnosis of PTSD under the DSM-V criteria. Furthermore, the examiner found that the evidence failed to show any mental health diagnosis, but that the first medical evidence in the record of a mental disability was in 1996. Therefore, the Board found that as the addendum opinion was internally inconsistent, failed to evaluate the Veteran under the DSM-IV, and did not discuss the private 2009 opinion, an additional addendum opinion was needed. Stegall, supra. In October 2019, another addendum opinion was obtained. Unfortunately, the October 2019 opinion is almost identical to the April 2018 opinion. The examiner again found that the Veteran did not have a diagnosis of PTSD, however this time he stated he found no evidence for such diagnosis under either the DSM-IV or V. However, he failed to explain how the Veteran’s reported symptoms failed to meet the diagnostic criteria. In addition, the examiner again found that the evidence failed to show any mental health diagnosis (before, during or after service), but that the first medical evidence in the record of a mental disability was in 1996. In addition, the examiner did not thoroughly discuss the 2009 private opinion. Rather, the examiner dismissed the opinion as speculative in a brief notation of “private psychiatry,” without providing a medically reasoned rationale or actual explanation of his conclusion. Therefore, the Board finds that as the addendum opinion is again internally inconsistent, fails to fully evaluate the Veteran under the DSM-IV, and thoroughly discuss the private 2009 opinion, an additional addendum opinion is needed. Stegall, supra. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records and associate them with the record. 2. The Veteran should then be afforded a VA examination in order to determine the current nature and etiology of his claimed PTSD. A qualified psychiatrist other than the examiner who provided the prior opinions in March 2016, April 2018 and October 2019 should conduct the examination. The ENTIRE record should be made available to and be reviewed by the examiner. Following a review of the record, the reviewing examiner is asked to furnish an opinion with respect to the following questions: The examiner should specifically indicate whether the Veteran meets the DSM-IV diagnostic criteria for PTSD and whether such diagnosis is the result of the Veteran’s claimed in-service stressors. If the examiner does not find that the Veteran meets the criteria for PTSD, he or she should explain why in detail and reconcile such findings with the prior opinions of record. The examiner must address the March 2009 private diagnosis of record. In offering any opinions, the examiner should consider the full record, to include the Veteran’s lay statements regarding the onset of his PTSD and continuity of symptomatology, as well as the medical records. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.