Citation Nr: 21007908 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 20-07 629 DATE: February 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), panic disorder, anxiety, and depression, is remanded. REASONS FOR REMAND The Veteran had active service from September 1964 to September 1967 in the Army, and from February 1973 to February 1994 in the Navy. An August 2020 Board of Veterans’ Appeals (Board) decision remanded this matter for further evidentiary development. After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must again be remanded for further development. The Board regrets the delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duty to assist. The August 2020 Board decision remanded this matter for a new VA examination to ascertain the nature and etiology of the Veteran’s claimed acquired psychiatric disorders. Pursuant to the remand, the Veteran underwent a VA examination in October 2020. Unfortunately, the Board finds this examination to be inadequate. Specifically, while the examination report found that the Veteran did not have a diagnosis of PTSD, the examiner did not provide an adequate etiological opinion regarding the Veteran’s diagnosed unspecified depressive disorder and did not include an etiological opinion regarding the Veteran’s other psychiatric disorders that were diagnosed (including a panic disorder and anxiety). Specifically, the examiner opined that, while the Veteran’s symptoms did not meet the criteria for PTSD under the DSM-5, his symptoms did meet the DSM-5 criteria for a diagnosis of an unspecified depressive disorder. The examiner provided a negative nexus opinion regarding the unspecified depressive disorder diagnosis and the Veteran’s military service. However, the examiner did not provide an adequate rationale to support this opinion and relied solely on the clinical interview and medical records. In other words, the examiner did not consider the Veteran’s competent and credible assertions regarding his psychiatric symptoms. Further, the examiner did not address the presence/absence of any panic and/or anxiety disorders—or any etiological opinions regarding any such diagnosed disorders. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action.  Id.  Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision.  Stegall, 11 Vet. App. at 271. Given the inadequacies of the October 2020 VA examination, a remand for corrective action is necessary, to include providing the Veteran a new VA examination that adequately addresses the nature and etiology of the Veteran’s claimed acquired psychiatric disorders. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a mental health VA examination to determine the nature and etiology of any current acquired psychiatric disorder to include a panic disorder, anxiety, and depression, that may be present. Any and all studies, test, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file. The examiner must: a. specifically state whether a diagnosis of an acquired psychiatric disorder—other than an unspecified depressive disorder—is shown on current examination or has been shown at any time during the appeal period. (In addressing this question, the examiner should specifically comment on whether diagnoses of a panic disorder and/or an anxiety disorder are present.) b. for the previously diagnosed unspecified depressive disorder as well as any other acquired psychiatric disorder(s) that is(are) diagnosed pursuant to paragraph (a.) of this Remand, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder manifested in service, or is otherwise causally or etiologically related to his military service. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.