Citation Nr: 21010510 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-26 597 DATE: February 25, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), and to include as due to military sexual trauma, is remanded. REASONS FOR REMAND The Veteran had active service from July 1976 to September 1977. This case was previously before the Board of Veterans’ Appeals (Board) in March 2020. At that time, the Board remanded the Veteran’s claim for further development. As discussed in the March 2020 Board Remand, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in December 2018. However, his representative at the time requested to postpone the hearing so he could contact the Veteran. As such, the Veteran was advised in a February 2019 letter that his Board hearing was rescheduled for March 2019, but the Veteran did not appear for the hearing. He did not provide good cause for his absence or request that the hearing be rescheduled. Therefore, his request for a Board hearing was deemed withdrawn. 38C.F.R. §§20.702(d), 20.704(d). The Board remanded this claim in March 2020 for a VA opinion to address prior indications that the Veteran had been diagnosed with PTSD and for his psychiatric condition to be considered under the DSM-5. A VA opinion was obtained in April 2020 in this matter. Subsequent addendum opinions were also obtained in September and October 2020 to address deficiencies in opinions rendered by the VA examiner. The examiner declined to answer many of the questions directed by the March 2020 Board Remand, stating that opining on such matters would be speculative, largely due to inconsistencies in the Veteran’s reporting of the details and timing of the alleged assault. However, the Veteran explained to a May 2013 VA examiner that he had incorrectly described the assault as being oral instead of anal to a prior VA treatment provider because he was ashamed of the assault. He also explained how his inconsistent reporting of the date of the assault as either January 1977 or May 1977 was due to memory issues. As such, the 2020 VA examiner should have considered the Veteran’s reasonable explanations for the inconsistencies and answered the Remand directive questions. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. As the Regional Office (RO) was unable to comply with the directive of the 2020 Board Remand (albeit not due to fault on the RO, as the RO clearly tried multiple times to obtain an opinion which complied with the directive), the Board has no recourse but to remand this issue again to ensure that the previously requested development is completed. Id. In addition, although the March 2020 Board Remand directed for an addendum opinion to be obtained as opposed to an in-person VA examination, the Board finds that an in-person examination of the Veteran could provide additional information which could help support his claim, as he was last examined by VA in-person in May 2013, nearly eight years ago. A current in-person examination could reveal additional psychiatric diagnoses which have presented in the Veteran since May 2013. As such, an in-person VA examination with opinions complying with those presented in the March 2020 Board Remand is needed before the Board can decide the merits of the Veteran’s claim. Further, as the Veteran’s VA treatment records currently associated with the claims file are dated through July 2014, updated VA treatment records should also be obtained. Accordingly, this matter is REMANDED for the following actions: 1. Obtain VA treatment records from July 2014 through the present. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate in-person VA examination with a VA examiner who did not provide the VA opinions in this matter in 2020 to determine the nature and etiology of his psychiatric condition. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. After a review of the entire record and an in-person examination of the Veteran, the examiner should provide opinions on the following: (a.) Identify all of the Veteran’s acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time since August 2011, or in close proximity thereto. If the examiner finds that the Veteran does not meet the diagnostic criteria for PTSD at any time proximate to his August 2011claim, he or she should reconcile such a finding with the evidence of record showing that the Veteran has a current diagnosis of PTSD, to include as noted in his VA treatment records as of January 2011. (b.) If PTSD is diagnosed, the examiner should offer an opinion as to whether such disorder is at least as likely as not (i.e., a 50 percent or greater probability) the result of the Veteran’s reported in service sexual assault, which he has alternatively reported occurred in January 1977 and May 1977. In this regard, the examiner should consider any markers that indicate such assault occurred, to include his documented complaints of chest pains beginning in January 1977 and a report of insomnia where he was unable to sleep for three days in May 1977; his violations of the Uniform Code of Military Justice for striking service members with his fist in the chest, using disrespectful language, disobeying an order, failing to go at the time prescribed to a work area, and being absent without authority in June 1977; and the receipt of a counseling regarding substandard performance of duty and total disregard of military discipline in July 1977. (c.) For all other diagnosed acquired psychiatric disorders, the examiner should offer an opinion as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) related to the Veteran’s military service, to include his complaints of insomnia for three days in May 1977. (d.) If a personality disorder is diagnosed, the examiner should offer an opinion as to whether such was subject to, or aggravated by, a superimposed disease or injury during service that resulted in additional disability. If so, please identify the additional disability. (e.) Finally, if it is determined that an acquired psychiatric disorder is related to the Veteran’s military service, the examiner should offer an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran has a currently diagnosed polysubstance dependence disorder that is caused or aggravated by such disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 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 C. Davidoski, 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.