Citation Nr: 21010966 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-35 408 DATE: February 26, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1961 to February 1981. This claim previously was before the Board in July 2020 and remanded for further development and consideration – including to obtain all outstanding records pertinent to the claim (whether VA and/or private) and then for a supplemental medical nexus opinion concerning the origin of the Veteran’s mental disorder, particularly the adjustment disorder with mixed anxiety and depressed mood that a prior July 2018 VA examiner had diagnosed in lieu of PTSD. But the Board finds that there has not been compliance – even the acceptable substantial compliance, with the prior remand directives, so the Board must again remand this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The July 2018 Disability Benefits Questionnaire (DBQ) already referenced indicates the Veteran had had an airway device in his throat (tracheostomy) for the past 15 months. The examiner diagnosed adjustment disorder with mixed anxiety and depressed mood, not PTSD. The Veteran reported getting anxious, at times, but he could not be specific about what precipitated that. He reported that he was unhappy concerning his cancer and whether he would be able to take the trach out. The examiner determined the Veteran did not meet the diagnostic criteria for PTSD, including based on his service in Vietnam. The examiner also found as follows: There is no evidence that he had a chronic mental health condition diagnosed at discharge. The report of an anxiety reaction in his service records was on July 8, 1980. This was about 13 years after he was in Vietnam and there is no evidence that his anxiety reaction was due to his [Vietnam] service. The veteran does not recall this. His current anxiety and depression is due to intercurrent stressors mainly having cancer and treatment with residuals concerns and complications (he still has a tracheostomy in his throat) In the prior July 2020 remand, the Board directed that a supplemental clinical opinion consequently be obtained and that, in making a determination as to whether the Veteran has a current disability as likely as not due to his service, the examiner was to “address the April 1980 EMS Ambulance Activity Report; April 1980 Sick Slip; May 1980 service treatment record (STR); July 1980 STR; and the report of the October 1980 Separation Examination.”   The claims file now includes a November 2020 DBQ containing an opinion that it is less likely than not the Veteran has a current disability causally related to his service. The examiner’s rationale was that: there was no mental disorder diagnosis made in service per review of the STR, nor was there evidence that symptoms noted in service persisted once he left the service. The veteran reported symptoms of anxiety and fatigue in 7/1980 in the context of an evaluation for tachycardia. He endorsed "depression or excessive worry" upon exiting the service. There is no evidence that symptoms of anxiety, depression, or other mental disorder persisted beyond that time. The veteran's diagnosis of adjustment disorder with mixed anxiety and depression per 7/2018 exam was made in the context of a medical condition and residuals at that time, cancer of the throat. It is therefore less likely as not that the veteran has a psychiatric disorder that began during his service, within a year of his discharge, or is otherwise related to a disease, event, or injury during his service. The examiner also opined that: There was no mental disorder diagnosis made in service per review of the STR. The veteran reported symptoms of anxiety and fatigue in 7/1980 in the context of an evaluation for tachycardia. He endorsed "depression or excessive worry" upon exiting the service. There is no evidence that symptoms of anxiety, depression, or other mental disorder persisted beyond that time The examiner, however, did not discuss all the relevant notations in the STRs as the Board directed. Thus, another remand is required. The Veteran’s STRs include an April 1980 Texas Department EMS Ambulance Activity Report showing he was seen for a complaint of chest pain; a subsequent April 1980 consultation record shows he had been seen three nights prior for acute onset of left anterior chest pain while watching television, and that it radiated into his left shoulder An EKG was negative. A May 1980 STR reflects that he reported a history of intermittent sensation of fluttering in his heart that he felt was caused by anxiety; it was noted to resolve with relaxation. He was to return in two months and have a treadmill consultation (i.e., stress test) before retirement; it was suspected that he had sinus tachycardia. A July 1980 STR indicates he had a chief complaint of anxiety; the impression was anxiety rection; the treatment was supporting therapy/relaxation therapy. A July 1980 Multistage Treadmill test based on his reports of anxiety, fatigue, and leg weakness, was negative. His October 1980 Report of Medical History for Retirement purposes reflects that he had, or had previously had, depression or excessive worry. His corresponding Report of Medical Examination for Retirement purposes indicates that his psychiatric evaluation was normal. The Veteran retired from the military in February 1981. Nearly three decades later, a November 19, 2008 preventive health and patient education record shows the Veteran had a negative depression screening but had noted that several days he had little interest or pleasure in doing things, feeling down, depressed, or hopeless. It also was noted, however, that he had no history of anxiety/depression. A November 28, 2008 VA record for initial outpatient visit healthy and physical reflects that the Veteran did not feel unhappy, depressed, or anxious. He had no crying spells, no insomnia, and no homicidal or suicidal ideation. A November 28, 2008 preventive health and patient education record shows he had no depression. A November 2009 VA preventive health and patient education record indicates he did not have a history of anxiety/depression. For whether he had little interest or pleasure in doing things, he reported “not at all”. For feeling down, depressed, or hopeless, he reported “not at all.”   In 2018, the Veteran filed a claim for service connection for “mental conditions”, to include “posttraumatic stress disorder secondary to Military Stressors During Active Duty Military Service”. He reported stressors based on his service in Vietnam from August 1967 to July 1968. Accordingly, this claim is being again REMANDED for the following still additional development and consideration: Obtain a supplemental clinical opinion to the July 2018 and November 2020 DBQs as to whether it is as likely as not (50 percent or greater probability) the Veteran has an acquired psychiatric disorder causally related to his service. *The examiner MUST note that he/she has considered the below evidence in making this determination and when providing rationale for conclusions: a.) An April1980 Texas Department EMS Ambulance Activity Report showing the Veteran was seen for a complaint of chest pain. b.) A subsequent April 1980 consultation record showing he had been seen three nights prior for acute onset of left anterior chest pain while watching television, and that it radiated into his left shoulder. An EKG was negative. c.) A May 1980 STR showing he reported a history of intermittent sensation of fluttering in his heart that he felt was caused by anxiety; it was noted to resolve with relaxation. He was to return in two months and have a treadmill consultation (stress test) before retirement; it was suspected that he had sinus tachycardia. d.) A July 1980 STR reflecting he had a chief complaint of anxiety; the impression was anxiety rection; the treatment was supporting therapy/relaxation therapy. e.) A July 1980 Multistage Treadmill test based on his reports of anxiety, fatigue, and leg weakness, which was negative. f.) His October 1980 Report of Medical History for Retirement purposes indicating he then had, or had previously had, depression or excessive worry. His corresponding Report of Medical Examination for Retirement purposes shows that his psychiatric evaluation was normal. The examiner may also consider the following: a.) A November 19, 2008 preventive health and patient education record showing the Veteran had a negative depression screening but had noted that several days he had little interest or pleasure in doing things, felt down, depressed, or hopeless. It was noted that he had no history of anxiety/depression. b.) A November 28, 2008 VA record for initial outpatient visit healthy and physical showing he did not feel unhappy, depressed, or anxious. He had no crying spells, no insomnia, and no homicidal or suicidal ideation. c.) A November 28, 2008 preventive health and patient education record showing he had no depression. d.) A November 2009 VA preventive health and patient education record showing he did not have a history of anxiety/depression. Concerning whether he had little interest or pleasure in doing things, he reported “not at all”. As for feeling down, depressed, or hopeless, he reported “not at all.” e.) The July 2018 and November 2020 DBQs.   When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide adequate rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. *Again, the examiner MUST acknowledge consideration of the April, May, July, and October 1980 STRs, even if this supplemental opinion ultimately is the same as those previously in July 2018 and November 2020. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.