Citation Nr: 21006042 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-37 832 DATE: February 3, 2021 REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to February 1979. The Veteran also served from January 1983 to November 1986 but was discharged under dishonorable conditions. See November 2012 Administrative Decision. As a result, entitlement to VA benefits cannot be established based on the dishonorable period of service. See 38 C.F.R. § 3.12. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for depression. The Veteran timely perfected an appeal. See April 2013 Notice of Disagreement; May 2016 Statement of the Case; June 2016 VA Form 9. In August 2018 and August 2020, the Board remanded this matter for additional development. The Veteran was provided with a VA examination in November 2019. The examiner opined that the Veteran’s depressive disorder was less likely as not related to service because service treatment records did not reveal psychiatric treatment or complaints. In the August 2020 remand, the Board found that the November 2019 VA opinion was inadequate. Specifically, the Board noted that the examiner did not consider the Veteran’s lay statements regarding the onset of his symptoms as a result of his separation from his first wife. The Board also found that the examiner relied on the absence of evidence in medical records to provide a negative opinion, which is contrary to established case law. Accordingly, the Board remanded to obtain an addendum opinion. In October 2020, the November 2019 examiner opined that the Veteran’s depressive disorder was less likely as not related to service because service treatment records did not reveal psychiatric treatment or complaints. The Board finds that the October 2020 VA examination report is not fully responsive to the Board’s August 2020 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The VA examiner essentially repeated the same rationale previously found to be inadequate by the Board in the August 2020 remand. Moreover, the examiner did not discuss the Veteran’s lay statements are directed by the Board. Accordingly, on remand, an addendum medical opinion, from a different VA examiner, should be obtained which carefully considers the Veteran’s lay statements regarding the onset of his psychiatric symptoms. The Board also notes that the Veteran was incarcerated from 1998 to 2011 and that the Veteran received psychiatric treatment while in prison. See VA Treatment Records. However, there are no prison treatment records associated with the record. On remand, an effort should be made to obtain any pertinent medical evidence generated during any period of incarceration. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, to include any outstanding VA or private treatment records and any prison treatment records during the Veteran’s 1998 to 2011 period of incarceration. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. After all available records have been associated with the claims file, obtain an addendum opinion from a different examiner than the November 2019/October 2020 examiner regarding the Veteran’s acquired psychiatric disorder. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. After reviewing the record and, if necessary, examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s acquired psychiatric disorder had its onset in service or is related to any in-service disease, event, or injury, to include the Veteran’s reports of first experiencing depressive symptoms after his separating from his first wife and the Veteran’s reports of behavior changes after being attacked in November 1971. Please explain why or why not. The examiner should carefully consider the Veteran’s lay statements regarding the onset of his psychiatric symptoms and continuous nature of his symptoms since service. Additionally, the examiner should closely review the Veteran’s treatment records when considering the development of his psychiatric disability over time. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 3. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, 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.