Citation Nr: 21014478 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-04 342 DATE: March 12, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder, to include as secondary to service-connected traumatic brain injury (TBI) residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1979 to March 1983. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the Board has recharacterized the claim as indicated above to afford the Veteran the broadest possible scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In August 2018 and October 2020, the Board remanded the claim on appeal for further development and adjudication. The Board finds that its prior directives were not substantially complied with and as will be discussed further an additional remand is necessary. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial, but not strict, compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder, to include as secondary to service-connected traumatic brain injury residuals, is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Appellant’s claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, as previously noted, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. The Veteran contends that he suffers from an acquired psychiatric disability, to include depressive disorder, as a result of his service. Specifically, the Veteran alleges that he suffered a head injury in service which caused his subsequent mental health disabilities. In the alternative, the Veteran notes that the in-service head injury caused his subsequent TBI residuals, which have caused or aggravated his current acquired psychiatric disabilities. In August 2018 the Board remanded the claim on appeal noting that the Veteran had undergone a VA examination in March 2018. Upon examination, the VA examiner diagnosed the Veteran with major depressive disorder. However, the VA examiner rendered a negative nexus opinion. In doing so, the VA examiner noted that the Veteran began seeking treatment in 2002, almost 20 years following his head injuries in service, which he claimed were the cause of his major depressive disorder. However, the VA examiner’s observation was incorrect because the medical evidence of record includes VA and private treatment records dated as early as 1998 documenting a diagnosis of and treatment for depression. See September 1998 C.M. Psychiatric Referral Form; December 1998 VA Treatment Note; cf. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Consequently, the Board found that a remand for an addendum opinion was necessary. In July 2019 the Veteran was provided with an additional VA Mental Disorders examination and medical opinion. However, in the Board’s October 2020 remand, the Board found the rationale of the July 2019 opinion to be insufficient. The Board noted that the examiner merely stated that the “preponderance of evidence fails to show a link between Major Depressive Disorder and military stressors until 1983,” and that “Psychiatric treatment in 1998 coincides with his retirement from former employment as food service employee at public school.” However, the rationale failed to adequately justify the opinion in question and appeared conclusionary. Therefore, the Board again found that a remand was necessary for an addendum opinion. In October 2019 the Veteran was again provided with a Mental Disorders examination. The examiner found that it was impossible to make a determination without resorting to speculation to state which emotional/behavioral signs and symptoms were parts of the co-existing mental disorder and which represent residuals of the Veteran’s TBI. The examiner stated that the diagnoses, though not due to the same causes, were exacerbated by similar triggers. In addition, the examiner found that the Veteran’s claimed mental condition was less likely than not incurred in or caused by in-service event. The examiner provided the rationale that there was no evidence in the records which shows that the Veteran’s major depressive disorder started in service or is related to any incident in service. There is no medical evidence of any consequence. Furthermore, the examiner found that there was no evidence of psychiatric complaints, findings, or treatment prior to military service, during service, or within one year of discharge. Rather, the examiner noted that the Veteran sought care around 2002, almost nineteen years after discharge. However, as this opinion did not address the Board’s specific inquiries, the AOJ requested an additional opinion. In November 2020 an additional medical opinion was obtained. The examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran met the diagnostic criteria for major depressive disorder without psychotic features and that such was less likely than not incurred in or caused by an in-service event. The examiner provided the rationale that there was no evidence in the records that showed that the Veteran’s condition began during service or was related to any incident which occurred in service. The examiner noted that there were no psychiatric complaints recorded prior to service, during service or within one year of service. The examiner noted that the Veteran was hospitalized in 1998, fifteen years after service and that there was no evidence of treatment until 2002. Furthermore, as to the Board’s specific questions, the examiner merely responded “Ok” to the Board’s request to consider relevant medical evidence. The examiner then restated the facts that the Veteran was hospitalized in 1998 and sought treatment in 2002, again emphasizing the time between military discharge and psychiatric hospitalization and treatment. The examiner did not provide any explanation or actual rationale as to why such a lapse in time was significant, despite the Board’s specific request for thorough explanations and supported rationale. Finally, as to the Board’s request that the examiner consider the Veteran’s lay statements, again the examiner stated “Ok” and then stated such were considered lay statements. The Board again emphasizes the need for thorough explanations as dismissing a Veteran’s statements as “lay” is not good enough. Lay statements must be weighed and considered against and in the context of medical evidence. Finally, the Board notes that while the initial March 2018 examiner discussed the first prong of secondary service connection, the examiner did not address the aggravation prong of secondary service connection. Furthermore, while the October 2019 examiner indicated that the Veteran’s mental health disability and his TBI residuals exacerbated each other, he did not actually address secondary service connection. Furthermore, none of the other examinations of record have discussed secondary service connection. Therefore, on remand an opinion which thoroughly addresses the Board’s previously posed questions should be obtained. In addition, the addendum opinion should also thoroughly discuss the Veteran’s claim of secondary service connection. Due to the amount of time which will pass on remand, updated treatment records should be obtained. The matter is REMANDED for the following action: 1. Obtain updated treatment records. 2. After obtaining all outstanding records, return the claims file to the November 2020 VA examiner for an addendum opinion. If the November 2020 VA examiner is unavailable, the claims file should be forwarded to an appropriate medical professional to provide the opinion. After reviewing the claims file, the examiner is requested to offer an addendum opinion that specifically addresses the following questions. a) The examiner should identify all current acquired psychiatric disabilities. b) For each currently diagnosed acquired psychiatric disability, is it at least as likely as not (a 50 percent or higher probability) that such disability is related to his service, to include his head injuries in service. A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. c) For each currently diagnosed acquired psychiatric disability, was such CAUSED OR AGGRAVATED by the Veteran’s service-connected TBI residuals? A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. In rendering an opinion, the examiner MUST consider the relevant medical evidence of record, to include the September 1998 C.M. Psychiatric Referral Form and December 1998 VA Treatment Note, which document diagnoses of depression with psychosis and major depression with psychotic features respectively. In rendering an opinion, the examiner MUST consider and weigh the Veteran’s relevant lay statements of record. The examiner is reminded that dismissing the Veteran’s statements as lay is not sufficient. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The examiner must provide a complete rationale for all opinions and conclusions reached. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.