Citation Nr: 21027049 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-26 033 DATE: May 4, 2021 REMANDED Entitlement to service connection for a psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to February 1972, to include verified service in the Republic of Vietnam from January 1971 to January 1972. In September 2018, the Board of Veterans' Appeals remanded this matter for further evidentiary development. If VA receives and associates with the claims folder relevant official service department records at any time after a decision is issued on a claim, VA will reconsider the issue without requiring new and material evidence. 38 C.F.R. § 3.156 (c) (2020). In the present case, additional relevant service records were received in August 2019. The Board finds that new service treatment records, not previously considered, were submitted after the last final December 2004 rating decision that continued the denial for the claim on appeal. As such, the claim will be reconsidered without consideration of whether there is new and material evidence. Id. Service connection for a psychiatric disorder, to include depression and PTSD Pursuant to the September 2018 Board remand, the Veteran was afforded a VA examination in September 2019 to determine the nature and etiology of his psychiatric disorders. The examiner found that the Veteran did not have a diagnosis of PTSD that conforms to the DSM-5 criteria. Instead, the examiner confirmed a diagnosis of unspecified depressive disorder and stimulant use disorder. The examiner noted the Veteran's depressed mood and chronic sleep impairment symptoms and opined that the Veteran's depressive disorder and stimulant use disorder were less likely than not related to military service. In a subsequent April 2020 addendum opinion, a VA examiner clarified that the Veteran did not have a diagnosis of PTSD because his stressors do not meet the required diagnostic criteria for PTSD Criterion A. The examiner stated that the Veteran's unspecified depressive disorder was unrelated to events during the Veteran's military service and was not diagnosed during military service. Lastly, the examiner stated that the Veteran's substance use disorder was diagnosed based on the pattern of substances use that is described in the September 2019 examination report. In this case, the Board notes that neither examiner discussed the Veteran's contention of a psychiatric disorder related to his deployment to Vietnam. Specifically, the Veteran has continuously reported exposure to enemy fire while deployed in Vietnam and described events involving rocket attacks and fearing for his life during these times. See March 2003, January 2012, March 2012, and May 2015 Statements in Support of Claim. Accordingly, the Board finds that the September 2019 and April 2020 opinions to be inadequate for adjudication purposes because the examiners failed to consider the Veteran's lay statements in rendering an opinion. Given the inadequacies of the September 2019 VA examination and April 2020 VA addendum opinion, a remand for corrective action is necessary, to include providing the Veteran a new VA examination that adequately addresses the current nature, extent, and etiology of his claimed psychiatric disorders. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dymentv. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of all diagnosed psychiatric disorders. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. Following a complete review of the evidence of record, and with consideration of the Veteran's statements, the examiner is requested to provide the following information: (a.) Identify all diagnosed psychiatric disorders on examination and in VA treatment records including, but not limited to, PTSD, depression, and adjustment disorder. (b.) Then, the examiner must opine whether it is at least as likely as not (50 percent probability or higher) that the disorder began during or is etiologically related to the Veteran's active duty service to include, service in Vietnam. (c.) If the examiner determines that any diagnoses in VA treatment records reflects a misdiagnosis, a complete explanation for this determination must be provided. If the examiner determines that the Veteran is not credible for any reason, he or she must provide a full explanation for why this is so, with citations to the record. A complete rationale for all opinions must be provided. If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. If, for any reason, the Veteran does not appear for his scheduled examination, the examiner is requested to provide the above medical opinions based on a review of the evidence of record. (Continued on the next page) The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Then, readjudicate the claim. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.