Citation Nr: 21008716 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 181113-1551 DATE: February 17, 2021 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to September 1968 and had service in the Republic of Vietnam. By way of background, the Board notes that the rating decision on appeal was issued in September 2016. In June 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d) (2019)). The Veteran selected the Higher-Level Review lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form, which was received by VA on June 14, 2018. Accordingly, this decision has been written consistent with the new AMA framework. The October 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). In the October 2018 AMA decision, the AOJ found that the Veteran’s in-service stressor was corroborated because his personnel records show that he received the Purple Heart Medal, which was evidence that he participated in combat. The Board is bound by this favorable finding. See 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c) (2019)). The AOJ certified the present appeal as entitlement to service connection for PTSD. In July 2019, the Board of Veterans’ Appeals (Board) issued a decision that denied entitlement to acquired psychiatric disorder, to include PTSD and depression. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC). In an August 2020 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the July 2019 decision for compliance with the instructions in the JMR. The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. The Veteran contends that he has a current acquired psychiatric disorder, namely, PTSD, which is caused by his active duty service, to include his service in the Republic of Vietnam. In this regard, the parties to the JMR concluded that the Board failed to provide an adequate statement of reasons and bases in their denial. Specifically, while the Board noted VA and private records from 2016 and 2017 which were negative for diagnosis of an acquired psychiatric disorder, they failed to adequately discuss the fact that the Veteran was noted to have depression and was taking Sertraline for such as late as 2018. In light of the JMR, the Board finds that a remand to obtain an additional etiology opinion is needed. See 38 U.S.C. § 5103A(d) (2019); McLendon v. Nicholson, 20 Vet. App. 84 -86 (2006); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). Updated treatment records should also be requested while the appeal is in Remand status. See 38 U.S.C. § 5103A(b) (2012). The matter is REMANDED for the following action: 1. The AOJ should obtain all updated relevant treatment records (private and VA) and associate them with the claims file. 2. After records development is completed to the extent possible, obtain a medical opinion from a qualified examiner with respect to the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD and depression. A new examination should be conducted. 3. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a) Provide diagnoses for all acquired psychiatric disorders. b) As to each diagnosed acquired psychiatric disorder including PTSD and depression, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) causally related to active service. c) As to any psychosis, provide an opinion as to whether it manifested in the first post-service year. 4. In order to comply with the JMR, in providing answers to the above questions, the examiner is asked to consider and discuss the significance, if any, of the fact that the Veteran was taking Sertraline for depression in 2017 and 2018, although it was noted in September 2018 that he was no longer taking the drug. In forming his/her opinions, the examiner is asked to consider and discuss the all the lay claims from the Veteran including conceded inservice traumatic stressors. In providing answers to the above questions, the examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner is asked to include in the medical report the rationale for any opinion expressed. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.