Citation Nr: 21009059 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-57 093 DATE: February 18, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than PTSD is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to November 1965. These matters were last before the Board of Veterans' Appeals (Board) in September 2019 and October 2020 where they were remanded for additional development, to include a VA mental health examination. As an initial matter, the Board notes that during the pendency of the additional development, the Veteran appealed the portion of the September 2019 decision which denied service connection for bilateral hearing loss and a low back disorder to the Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an Order granting a Joint Motion for Remand (JMR). An opinion concerning the vacated portion of the Board's September 2019 ruling for additional action in accordance with the JMR is addressed in a separate decision. The Veteran was afforded a VA mental health examination in October 2019. Upon review of the VA examination report, the Board finds the opinion insufficient as the examiner seemingly relied upon an inaccurate factual premise in stating that "records show Veteran first sought psychiatric care at the San Juan VA Medical Center in October 2015." A review of the record, however, reveals that in August 2002 the Veteran was seen with a "hx of mental depression." See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.) Moreover, one of the bases for the adverse opinion appears to be a lack of mental health treatment for "almost fifty years after the military service." Therefore, an addendum medical opinion was sought for the purpose of addressing the etiological relationship between service and the Veteran's current psychiatric diagnoses in light of a more accurate understanding of the medical record. An addendum medical opinion was acquired in November 2020. However, it appears that the examiner arrived at the same conclusion as the October 2019 VA examination by utilizing the same insufficient factual premise, namely that the Veteran first sought psychiatric care in October 2015 without regard for the earlier complaint previously highlighted by the October 2020 Remand. Therefore, the Board finds that the opinion of the November 2020 VA examiner is also inadequate. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. at 271. In light of the failure to comply with the directives of the October 2020 Remand, the Board finds that the claims file must once again be returned to the VA examiner for an addendum opinion in which the Veteran’s previous psychiatric history since leaving military service is actually discussed and analyzed appropriately within the context of determining any potential etiology of current psychiatric disability to military service. Finally, because a decision on the matter of service connection for a psychiatric disorder could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the TDIU claim, therefore, is also required. The matters are REMANDED for the following action: 1. Associate with the file any updated VAMC records relating to the Veteran, (dated since October 2020). 2. Make arrangements for a VA medical opinion concerning the Veteran's claimed acquired psychiatric disorder, other than PTSD. Whether another in-person examination is necessary is left to the discretion of the medical professional. The claims folder should be available for review in conjunction with this request. Based on the review of the record, the identity of all current psychiatric disorders should be made, and an opinion provided as to whether it is it at least likely as not (50 percent or higher degree of probability) that any identified psychiatric disorder is related to an in-service disease or injury, or otherwise had its onset in service. The report should include a discussion of the Veteran's lay statements in support of his claim. In particular, the examiner is asked to review and discuss the Veteran’s history of mental health treatment prior to 2015, specifically including the August 2002 VAMC record in which the assessment included "hx of mental depression.” A complete rationale must be provided for all opinions. (In this regard, it should be noted that a lack of treatment records by itself would not usually be taken as establishing a lack of symptoms.) If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Readjudicate the issues on appeal MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.