Citation Nr: 21026437 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-16 717 DATE: May 3, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active military service from November 2007 to April 2010, including service in Southwest Asia from May 2008 to August 2009. The matter is on appeal from an October 2011 rating decision. The Veteran's appeal was most recently before the Board in July 2018. Following a hearing before the undersigned Veterans Law Judge in February 2018a transcript of which is of recordthe Board remanded the Veteran's appeal, directing the Agency of Original Jurisdiction (AOJ) to obtain the Veteran's complete service treatment records and to provide a new VA examination to determine the nature and etiology of the Veteran's acquired psychiatric disorders, if any. The AOJ afforded the Veteran a new VA examination in March 2019. In the examination report, the VA examiner opined that the Veteran did not have a current psychiatric disorder. The Veteran's claim is once again before the Board. The Board concludes that the Veteran's appeal must once again be remanded for two reasons. First, in its July 2018 remand, the Board found that the Veteran's complete service treatment records had not been obtained and that the records included in his claims file are summaries of his service treatment records rather than the underlying records themselves. The Board directed the AOJ to obtain the Veteran's complete service treatment records. The record does not show that the AOJ undertook the development according to the Board's remand directives. There is no indication in the record that the AOJ attempted to obtain the Veteran's complete service treatment records, and his complete service treatment records are not in his claims file. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ did not substantially comply with the Board's July 2018 remand directives in obtaining his service treatment records. A remand is necessary to cure this deficiency. Second, when VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be adequate, a medical examination report must contain clear conclusions, supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner providing a medical opinion should also be fully aware of the Veteran's medical history. Nieves-Rodriguez, 22 Vet. App. at 301. The March 2019 VA examination is inadequate. First, the VA examiner did not have access to the Veteran's complete service treatment records, which are needed to determine whether the Veteran has an acquired psychiatric disorder and, if so, whether it is as likely as not that it had its onset during active service or is otherwise due to the Veteran's active service. The Board notes that the summaries of the Department of Defense records in the Veteran's claims file reference an unspecified mental disorder; these references begin in January 2010 during the Veteran's active service. Second, the March 2019 VA examination report does not address the Veteran's VA medical treatment records, including the records of his April 2011 VA treatment records that include a diagnosis for adjustment disorder, November 2014 VA treatment records referencing a provisional diagnosis of PTSD, or VA treatment records documenting his participation in group therapy sessions for PTSD. Evidence of an earlier diagnosis is relevant because the current disability prong of service connection is satisfied when a disability existed at the time the Veteran filed his claim, even if the disability is resolved during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The Board also notes the Veteran's August 2019 statement in which he reports that the VA examiner refused to look at his file during the March 2019 examination. These omissions indicate that the March 2019 VA examination report is not predicated on a full review of the Veteran's medical history. The examination is therefore inadequate. See Nieves-Rodriguez, 22 Vet. App. at 301. The Veteran's appeal must be remanded to afford him a new examination. The Veteran is presently incarcerated. Appropriate action should thereby be taken to obtain the directed examination and opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records. Document all requests for information as well as all responses in the claims file. If it is determined that all service treatment records have been obtained or that all efforts to obtain the Veteran's complete service treatment records have been exhausted, the Regional Office (RO) should document this finding. 2. After undertaking the development directed above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. Following review of the Veteran's file, interview, and examination, with any necessary testing, the examiner should address the following directives ordered by the Board in July 2018: (a.) Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. The clinical significance, if any, of the records showing the Veteran's April 2011 adjustment disorder diagnosis, November 2014 PTSD diagnosis, and treatment for PTSD should be discussed. (b.) State whether the Veteran meets the criteria for a PTSD diagnosis. If a PTSD diagnosis is made, the stressor(s) relied on should be identified. (c.) For each psychiatric diagnosis, state whether it is as likely as not that the disorder had its onset in service or is otherwise etiologically related to the Veteran's active service, to include being the result of an incident or stressor during service. (d.) For each psychiatric diagnosis, state whether it is as likely as not that the disorder was caused by a service-connected disability, to include the medications and debilitating effects of the disability. (e.) For each psychiatric diagnosis, state whether it is as likely as not that the disorder was aggravated (worsened) by a service-connected disability, to include the medications and debilitating effects of the disability. If the Veteran remains incarcerated, the RO must make reasonable efforts to accommodate the Veteran with respect to scheduling him for this VA examination. Specifically, the RO must confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for the examination. If the Veteran is confined to prison, the examination must be tailored in such a manner to arrange for his examination in prison by VA personnel, a fee-based provider contracted by VA, or a prison physician at VA expense, to the extent possible. The RO should provide documentation of its attempts to obtain the VA examination, including any efforts to coordinate with prison staff. If the RO has exhausted all efforts to provide a VA examination and determines that the examination simply cannot be conducted due to the Veteran's incarceration, the RO must instruct a VA examiner to provide the medical opinion after a thorough review of the Veteran's file, including his service treatment records and VA medical records, in its entirety. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.