Citation Nr: 21006137 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-01 681 DATE: February 3, 2021 REMANDED The appeal regarding entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and generalized anxiety disorder, is remanded. The appeal regarding entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the Appellant in this case, had active duty in the U.S. Navy Reserve from October 2002 to September 2003, and from October 2003 to February 2005, with additional periods of active duty for training (ADT) and inactive duty for training (IADT). This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a July 2017 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In April 2020, the Board remanded this case for further development. Specifically, the Board found that the October 2019 VA examiner’s opinion was inadequate in that it appeared to rely solely on the absence of treatment for mental health symptoms during and for many years after service and disregarded the Veteran’s report of anxiety during active duty. The Board determined that a new VA opinion was necessary to address the question of whether the Veteran’s current psychiatric disorder had its onset during active service or was otherwise related to her active service. The examiner was asked to consider the Veteran’s reports that her anxiety began during active duty as well as VA treatment records noting that she had previous episodes of depression and anxiety during college and a history of anxiety for many years. The examiner was advised that “…the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so.” A new VA opinion was obtained in September 2020. The examiner copied directly from the October 2019 VA examination report that the Veteran had reported that she experienced anxiety and mood swings during military service but avoided seeking treatment out of concern that it would impact her career. The examiner opined that the “…Veteran’s most recent diagnosed Bipolar II Disorder, Unspecified Anxiety Disorder, and Borderline Personality Disorder are less likely than not incurred in service. There was no documented contact with BH until 2008 and no consistent contact with BH during or since service.” Thus, while the examiner acknowledged the Veteran’s report of anxiety in service, she did not address those reports in her opinion, nor did she explain whether or not and why she was rejecting the Veteran’s reports of symptomatology in service, as specifically directed by the Board in its April 2020 remand directives. For these reasons, while the Board regrets the delay, the Board finds that another remand is necessary to obtain a VA opinion that complies with the Board’s directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The issue of entitlement to a TDIU is inextricably intertwined with the service connection claim being remanded and should be readjudicated by the RO along with the service connection claim once the development requested has been completed. The matters are REMANDED for the following action: Obtain a VA opinion, or examination if deemed necessary, from an appropriate specialist to address the nature and etiology of the Veteran’s psychiatric disorders. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s psychiatric disorders were incurred during or caused by active service? The examiner is asked to consider the Veteran’s reports that her anxiety began while on active duty as well as VA treatment records noting that the Veteran had previous episodes of depression and anxiety while in college and a history of anxiety for many years. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The examiner cannot rely solely on the absence of documented mental health treatment during and after service in formulating his/her opinion. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.