Citation Nr: 21022555 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-51 358 DATE: April 16, 2021 REMANDED Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD)and depressive disorder, is remanded. REASONS FOR REMAND The appellant is a Veteran who had active duty for training (ACDUTRA) from August 1, 1979 to August 13, 1979 and from July 24, 1982 to August 7, 1982 and had additional National Guard service (and is a Veteran by having established service connection for a right eye disability, a hematoma, and tinnitus based on such service). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision that continued a denial of service connection for PTSD. In November 2019 a videoconference hearing was held before the undersigned; a transcript is in the record. In December 2020 the matter was remanded in part to the regional office (RO) for additional development. In further part (regarding PTSD) a January 2020 Board decision reopened the claim, and remanded that portion of the claim for de novo consideration (and development). The issue on appeal is now recharacterized to encompass multiple psychiatric diagnoses pursuant to Clemons v. Shinseki, 23 Vet. App. 1(2009). The Veteran’s August 2015 claim noted “depression, stress, and anxiety. Entitlement to service connection for a psychiatric disability, to include PTSD and depressive disorder. The Board is aware that this matter was remanded before (and regrets the delay inherent with yet another remand). However, the response provided has not been substantially compliant with instructions in the previous remands, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s December 2020 remand noted that reliance (at least in part) on prior adjudicatory determinations for a de novo medical nexus opinion is improper. The Board noted that the September 2020 VA provider observed that the Veteran’s 2014 private diagnosis was based solely on verbal testimony; however, the examiner ignored that the provider of the 2014 diagnosis of PTSD is the one who offered the November 2019 opinion (and has seen the Veteran bi-annually since the initial diagnosis - which suggests a greater familiarity with the Veteran’s psychiatric status than was acknowledged). It was also noted that the records of those visits include data beyond the Veteran’s self-reports and the diagnosis has continued. With this in mind, pursuant to the December 2020 remand, an VA examination and addendum medical opinion was obtained in February 2021. The rationale was to include comment on (expression of agreement or disagreement with each, in turn) the opinions already in the record in the matter, to include those by the VA examiners in 2016 and 2020 (against the claim) and those by the Veteran’s private medical provider (in support of the claim), with explanation of the basis for agreement or disagreement. With regard to the September 2020 VA opinion, the December 2020 VA examiner stated, “This [examination] noted depression, is also thorough in terms of history-gathering and records review, and I agree that its conclusions are also likely accurate.” In a May 2021 correspondence, the Veteran’s representative stated, The consultative examiner who provided a medical opinion appears to have discounted the 5 years of ongoing psychiatric treatment and diagnosis of the [V]eteran’s PTSD and instead refers to Dr. [H’s] initial assessment as very brief without objective findings. There is no mention at all of the ongoing treatment by Dr. H as documented in the records. Those records do contain objective findings related to [the Veteran’s] PTSD. Like all of the previous examiners and opinion writers, this [VA] examiner has referred to Dr. H as someone who performed a one-time brief [examination], rather than the doctor who has been treating [the Veteran] for several years. The Board agrees with the Veteran’s representative and finds the February 2021 VA opinion is less than fully responsive to the remand directives, and is inadequate for rating purposes, requiring corrective action. See Stegall, 11 Vet. App. at 271. Development for an addendum opinion is necessary. The matters are REMANDED for the following: Arrange for the Veteran’s claims file to be forwarded to an appropriate clinician (a psychiatrist or psychologist other than the ones who provided the June 2016, September 2020, and February 2021 medical opinions) for review and an addendum medical opinion regarding the nature and etiology of the Veteran’s psychiatric disability. [If further examination of the Veteran is deemed necessary for an opinion sought, it should be arranged.] The consulting provider [examiner] should, (a) Identify each psychiatric disability found/shown during the pendency of the claim, and specifically indicate whether the Veteran has a diagnosis of PTSD, in accordance with DSM-V, based on his VA-acknowledged stressor event in service. If PTSD is not diagnosed, identify the criteria for such diagnosis found lacking. (b) Identify the likely etiology for each psychiatric disability other than PTSD diagnosed (to include depressive disorder). Is at least as likely as not (a 50% or better probability) that the disability is etiologically related to the Veteran’s service (was incurred therein) and acknowledged (by VA) events therein. If not, identify the etiology for such disability that is considered to be more likely, and explain why that is so. All opinions must include complete explanation of rationale. The explanation should include citation to supporting factual data and medical principles. The rationale must include comment on (express agreement or disagreement with each, in turn) the opinions already in the record in the matter, to include those by VA examiners in 2016 and 2020 (against the claim) and those by the Veteran’s private medical provider (in support of the claim), with explanation of the basis for agreement or disagreement. The rationale must acknowledge that the provider of the 2014 diagnosis of PTSD (Dr. E.W. H) is the provider who offered the November 2019 opinion (and has seen the Veteran bi-annually since providing the initial diagnosis) and that the records of the visits include objective data beyond the Veteran’s self-reports. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.