Citation Nr: 21026728 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-27 590 DATE: May 3, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, including depression and an adjustment disorder but excluding post-traumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Navy from February 1987 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In light of the evidence of record, the Board has recharacterized the issue on appeal more broadly in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The service connection claim for depression has been recharacterized to include any acquired psychiatric disorder, including depression and an adjustment disorder, but excluding PTSD. In May 2019, the claim was reopened and remanded for further development. Specifically, the RO was instructed to obtain outstanding private and VA treatment records, and schedule the Veteran for a VA examination. A review of the claims file reveals that remand is necessary for compliance with the May 2019 remand directives. As noted in the previous Board decision, the Veteran's treatment records include a positive depression screen and diagnosis of depression. See December 2006 and January 2010 depression screens. See also January 2008 VA treatment record. A March 2010 treatment record notes the Veteran is taking medication for episodic depression and an adjustment disorder with anxiety. The claim was previously remanded for the Veteran to be afforded a VA examination to determine if his depression was directly related to his military service or secondarily related to his service-connected PTSD. A screenshot shows the VA examination was cancelled because the Veteran failed to respond. The screenshot notes there were attempts to reach the Veteran by telephone regarding the scheduling of the VA examination. This documentation is insufficient for the Board to determine whether adequate notice was provided. On review, there is no documentation showing the Veteran was scheduled for a VA examination and that he received notification of the date and time of the scheduled examination. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. §§ 3.655(a), (b). In this case, however, it is unclear whether the Veteran was properly notified, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Therefore, remand is necessary to comply with the directives in the May 2019 Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). This matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his diagnosed psychiatric disorder. In his July 2015 VA Form 9, the Veteran indicated that he was treated by VA and private doctors. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. The AOJ should also secure any outstanding VA treatment records. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder, including depression and an adjustment disorder with anxiety but excluding PTSD, that may be present. A copy of the notice letter mailed to the Veteran at his most current address of record with the date, time and location of the examination must be associated with the claims file. If the Veteran fails to respond to attempts to schedule a VA examination, forward the claims file for a VA opinion to address the questions asked below. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current acquired psychiatric disorder, excluding PTSD, that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that the Veteran has an acquired psychiatric disorder that is caused by or aggravated by his service-connected PTSD. If the Veteran does not meet the criteria for a diagnosis of depression, the examiner must determine whether the Veteran's symptoms of depression are manifestations of his service-connected PTSD. (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 a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.