Citation Nr: 21006493 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-19 033 DATE: February 4, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from April 1947 to January 1950 and in the United States Air Force from January 1951 to September 1953. He died in November 2018. The appellant is his surviving spouse. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). At the time of the Veteran’s death, the claim listed above was pending. Following the Veteran’s death, the appellant submitted a request for substitution as to this pending claim in November 2018. That same month, the appellant was notified that she had been accepted as a substitute claimant. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(e) (2019). Since there has been a proper substitution of the appellant as the claimant, the Board will proceed to adjudicate this claim. Id. The issue of entitlement to service connection for PTSD has been recharacterized as service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board remanded this matter for additional development in July 2020. The claim was remanded to obtain an addendum opinion regarding whether it is at least as likely as not that the Veteran’s depression was aggravated by his military service. In November 2020, a negative VA medical opinion was issued. The examiner opined that the Veteran’s depression was less likely than not aggravated by his military service. The examiner stated that there is no evidence in the records available for review to conclude that the Veteran’s diagnosed disorder is a result of his service. The examiner also stated that symptoms of depression are difficult to differentiate when the diagnosis is made in the context of dementia and urinary tract infections. The examiner further noted that the private March 2015 PTSD disability benefits questionnaire (DBQ) diagnosing the Veteran with PTSD is not supported. The examiner stated that the DBQ did not include a description of the stressor and that the provider who completed the DBQ only checked 1 criterion of the PTSD criteria. Therefore, the diagnosis is not supported by the examiner’s own report. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38C.F.R. §3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the November 2020 VA medical opinion is inadequate. The examiner failed to consider the Veteran’s lay statements in reaching his or her conclusion. In February 2018, the Veteran submitted correspondence that detailed some of the Veteran’s experience in service; taking soldiers out of bloody trucks, identifying remains, being knocked off the stage during a shelling, and his traumatic experience travelling on a troop ship to England. See February 2018 Correspondence. The Veteran reported that “some of [his] worst nightmare and continuous intrusive thoughts plague [him] regularly…I can see how this has…caused major depression.” Id. Furthermore, private medical notes indicate that in addition to the June 2015 medical treatment records considered by the examiner, March 2015 and December 2015 medical treatment records also note depression. The Veteran’s medical records in March 2015 and April 2016 note positive PTSD symptoms as well. Any etiology opinion must take into account the Veteran's medical history. Regrettably, for the above reasons the Board also finds that there has not been substantial compliance with its previous remand directives. As such, this matter must be remanded for an addendum VA medical opinion that complies with the Board’s remand directives and considers all the evidence of record The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the appellant notified in accordance with 38 C.F.R. § 3.159(e). 3. After the above has been completed to the extent possible, return the claims file to the examiner who conducted the November 2020 medical examination and request that the examiner prepare an addendum to the examination report which addresses the following question. If the examiner is unavailable, arrange to obtain an opinion from a suitably qualified health care professional which addresses the following: (a.) Whether it is at least as likely as not that the Veteran’s depression was caused by and/or aggravated by his military service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor or such a conclusion as it is to find against it. The examiner must specifically consider and discuss the Veteran's lay statements regarding his psychiatric disorder. The opinion and rationale should reflect such consideration. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the 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(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt, 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.