Citation Nr: 21028551 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-04 934 DATE: May 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected hiatal hernia and right knee disorders, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1982 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. This matter was previously before the Board in July 2018, April 2019, July 2020, and December 2020. In December 2020, the Board remanded this matter to obtain an addendum medical opinion appropriately considering whether the Veteran's acquired psychiatric disorder is proximately due to, a result of, or aggravated by service-connected hiatal hernia with gastroesophageal reflux disease (GERD) or right knee subpatellar chondromalacia and instability. The agency of original jurisdiction (AOJ) obtained a medical opinion in February 2021. Unfortunately, after reviewing the medical opinion, the Board finds that substantial compliance with the prior remand directives is not established and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (2011) (holding that the Board errs when it fails to ensure substantial compliance with its own remand directives). In February 2021, a VA examiner opined that "[t]he 2009 private psychological report is the only primary document of record that indicates any relation between the Veteran's pain and mental disorders. The VA treatment notes and 2016 C&P exam do not indicate that the Veteran's mental disorders were permanently aggravated by any medical condition. Mood and sleep disturbances during periods of acute pain are normal, and the veteran's attribution of such is not negated or discredited. Rather, there is lack of evidence that his mental disorder symptoms are permanently worse due to his hiatal hernia and right knee conditions." The examiner appears to have considered that aggravation of a nonservice-connected disorder by a service-connected disorder needs to be "permanent" in order to support a grant of service connection. However, applicable law states that aggravation does need not be permanent for the purposes of service connection under 38 C.F.R. § 3.310(b) as long as such aggravation is beyond the natural progression of the disease. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Accordingly, the Board cannot conclude that the examiner's opinion was fully informed, and further clarification must be obtained on remand. The Board sincerely regrets the delay occasioned by multiple remands and appreciates the Veteran's patience as VA works to fulfill its statutory obligation to assist him in obtaining evidence necessary to support his claims for compensation. The matter is REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Obtain an addendum medical opinion from the February 2021 VA examiner, if available, or any other suitably qualified clinician. The clinician is asked to review the claims file, and to opine on the following: (a) Is it at least as likely as not that any acquired psychiatric disorder is aggravated beyond its natural progression by a service-connected hiatal hernia or right knee disorder? The clinician is advised that aggravation, for the purposes herein, is considered to be any increase in severity of the disease that is beyond the natural progression of the disease. If the clinician determines that any increase in severity due to service-connected knee and hiatal hernia disorders is not beyond the natural progression of the disease, the clinician should provide a complete rationale for this finding, to include an explanation of the natural progression of the Veteran's psychiatric disorders and why, under the facts of this case, any increase in severity is not beyond the natural progression of the disease. The clinician is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.