Citation Nr: 21009472 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-07 474 DATE: February 22, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1964 to March 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a January 2020 hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. This claim was previously advanced on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). In a May 2020 decision, the Board remanded this issue to the AOJ for further development. Entitlement to service connection for an acquired psychiatric disorder is remanded. As noted above, a May 2020 Board decision remanded this claim to the AOJ for further development, specifically, to schedule the Veteran for a VA examination in order to determine the nature and etiology of his claimed acquired psychiatric disorder. In compliance with the Board remand directives, the AOJ attempted to schedule the Veteran for a VA psychological examination in October 2020. The Veteran indicated that he was no longer pursuing the claim as he and his attorney did not believe there was enough evidence to proceed. The AOJ denied the claim in an October 2020 supplemental statement of the case, which was then returned to the Board for review. In January 2021 correspondence, the Board informed the Veteran and his representative of the consequences of withdrawal of his claim of entitlement to service connection for an acquired psychiatric disorder as well as the Board’s requirement for express written consent documenting the intent to withdraw. 38 C.F.R. § 20.204. The Veteran and his representative responded in separate January 2021 letters, both indicating that in light of the Board’s explanatory letter, the Veteran desired to proceed with the claim for entitlement to service connection for an acquired psychiatric disorder and was willing to attend a new psychological examination at VA’s convenience. After due consideration, the Board finds that good cause has been shown for the Veteran’s failure to cooperate in the scheduling of a VA examination and that he has shown a willingness to report to a rescheduled examination. See 38 C.F.R. § 3.655(a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Therefore, remand is necessary to provide the Veteran another opportunity to attend a VA psychological examination as directed by the previous Board decision. As noted in the previous Board decision, given that the Veteran has advanced various theories of entitlement, the VA examiner should address whether the Veteran’s acquired psychiatric disorder(s) are caused or aggravated by his active service, to include claimed exposure to malathion, as well as aggravated by his service-connected prostate and penile deformity disabilities. The Veteran is reminded that he is expected to attend the scheduled examination or give proper notice in the event of cancellation. VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that “[t]he duty to assist is not always a one-way street”). In this instance, the Veteran must aid in the development of his claim by attending the VA examination as requested. If the Veteran fails to attend his rescheduled examination, his claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Obtain and associate with the record any outstanding VA and relevant private treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disorder(s). The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Upon review of the record as well as interview and examination of the Veteran, the examiner should provide the following opinions: a) Please identify (by diagnosis) each psychiatric disability shown under the DSM-V criteria, to include consideration of depression and anxiety disorder. b) Please identify the most likely etiology for each psychiatric disability. Specifically, opine: Whether it is at least as likely as not (50 percent probability or greater) that such disability arose during (was first manifested in or is otherwise etiologically related to) the Veteran’s active service, to include claimed exposure to malathion; and Whether it is at least as likely as not (50 percent probability or greater) that such disability was caused by the Veteran’s service-connected prostate and/or penile deformity conditions; OR Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s service-connected prostate and/or penile deformity conditions result in any additional functional impairment associated with his acquired psychiatric disorder (e.g., a medically discernible increase in frequency, duration and/or severity, even if temporary, above the degree associated with that expected from his acquired psychiatric disorder alone). The examiner is requested to discuss whether the underlying service-connected disorders are medically capable of causing or aggravating an acquired psychiatric disorder and, if so, whether the Veteran’s psychiatric disorder(s) has been caused or aggravated based on the particular facts of this case. c) Please clarify whether the “mild depression” noted on the Veteran’s entrance examination and “mild anxiety syndrome” noted his separation examination share a common etiology. If any diagnosed psychiatric condition predated service, please opine whether is it is at least as likely as not (50 percent probability or greater) it increased in severity beyond the normal progress of the condition during service? When formulating the requested opinions, the examiner is requested to consider the following evidence: • The January 2014 and December 2019 lay statements and January 2020 hearing testimony of the Veteran and his wife stating that the Veteran experienced depressive symptoms inservice and that he has been continuously provided medication for the condition since shortly after separation. Also, lay statements from both parties indicating the Veteran’s depressive symptoms worsened after his March 1998 prostate surgery. • April 1998 private treatment records indicating the Veteran was treated with Paxil for depression both before and after his March 1998 prostate surgery, including a doctor’s notation describing the Veteran as “anxious, anxious, anxious.” 3. After undertaking this and any other development deemed appropriate, readjudicate the issue of entitlement to service connection for acquired psychiatric disorder. If the benefit sought is not granted, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then, return the case to the Board for further review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.