Citation Nr: 21024298 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-08 927 DATE: April 22, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depression, and a generalized anxiety disorder, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from March 1961 to May 1964. In February 2013, the Veteran testified at a Board hearing before a now-retired Veterans Law Judge. A transcript of the hearing is of record. In February 2018, VA informed the Veteran that he had the right to request another hearing to be conducted by a Veterans Law Judge who would decide the issue on appeal. The Veteran did not request a new hearing. In April 2014 and April 2018, the Board of Veterans’ Appeal (Board) remanded the appeal for additional development. The issue of entitlement to service connection for PTSD has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depression, and generalized anxiety disorder, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that his psychiatric disorder is the result of military service. The Board notes that this matter was remanded in April 2018 for a VA examination to determine the nature and etiology of any current psychiatric disorder(s) found. The examiner was directed to render opinions on (1) whether the psychiatric disorder began during or was otherwise caused by military service and (2) whether the psychiatric disorder was caused or aggravated by his service-connected tinnitus. The Veteran underwent VA psychological examinations in May 2019. He was diagnosed with unspecified neurocognitive disorder. The examiner noted that the Veteran did not meet the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (DSM V) diagnostic criteria for PTSD based on her clinical examination. In addition, she gave a negative opinion that the psychiatric disorder was the result of military service. Specifically, the examiner stated that there was no basis for a current diagnosis of anxiety disorder, mood disorder, or PTSD. She noted that while a review of the medical records indicated some symptoms of PTSD, anxiety, and depression in the past, the Veteran did not currently endorse those symptoms. In addition, the examiner noted that a review of the records reported no anxiety symptoms, mild symptoms of depression, and no symptoms of PTSD, generalized anxiety disorder, or panic disorder. She also stated that while the Veteran reported anxiety symptoms and endorsed nightmares, they did not meet the full criteria for fully developed anxiety disorder or PTSD diagnoses. She further stated that while the Veteran’s neurocognitive disorder’s etiology has not been established, the suspected etiology of Alzheimer’s dementia or vascular dementia have not been related to psychological trauma. Finally, the examiner stated that she was unaware of any compelling evidence that there is a causal or aggravating relationship between tinnitus and neurocognitive impairment but would defer to neuropsychology for advanced knowledge regarding any possible connection. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the above, the Board finds that the May 2019 VA etiology opinion inadequate for adjudicative purposes. The Board has reached this conclusion because the examiner’s etiology opinion did not address whether any acquired psychiatric disorder the Veteran may had had during the pendency of the appeal was due to his military service even if it had since resolved and the secondary service connection opinion was conclusory in nature and not a thorough and well-reasoned opinion as to why the Veteran’s psychiatric disorder was not caused or aggravated by his service-connected tinnitus. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Therefore, the Board finds that a Remand to obtain an adequate medical opinion is required. See 38 U.S.C. § 5103A(d); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In this regard, when providing the requested medical opinions and again adjudicating the claim the VA examiner and the RO must apply the United States Court of Appeals for Veterans Claims (Court) new definition of aggravation found which now includes a temporary worsening of a disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain a VA opinion regarding the nature and etiology of any acquired psychiatric disorders diagnosed during the pendency from a medical professional with appropriate expertise. The claims file should be available to the examiner and a notation made on the report that the claims file was reviewed. If the requested opinions cannot be rendered without an examination, then schedule the Veteran for an examination (or a telehealth interview, if an in-person examination is not feasible) Following consideration of the evidence of record (both lay and medical), and a new examination if necessary, the examiner is to address the following: a. Provide diagnoses for all acquired psychiatric disorders diagnosed during the pendency of the appeal including any that have since resolved, b. As to each acquired psychiatric disorders diagnosed during the pendency of the appeal including unspecified neurocognitive disorder diagnosed by the May 2019 VA examiner, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is due to a disease or injury while on active duty. c. Provide an opinion as to whether any psychosis manifested in the first post-service year. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorders diagnosed during the pendency of the appeal including unspecified neurocognitive disorder was caused by his service-connected tinnitus. e. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorders diagnosed during the pendency of the appeal including unspecified neurocognitive disorder was aggravated by his service-connected tinnitus. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page)   If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.