Citation Nr: 21030986 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-21 140 DATE: May 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1971 to July 1976. In May 2019, the Veteran testified at a Board hearing. The transcript is of record. The Board remanded this matter for additional development in May 2020. See May 2020 BVA Decision. The claim was remanded to obtain an addendum opinion regarding whether it is at least as likely as not that any diagnosed psychiatric disorder originated during or is otherwise etiologically related to the Veteran's military service. In October 2020, a negative VA medical opinion was issued. See October 2020 VA Examination. The examiner opined that the Veteran's major depression disorder, unspecified depression, dementia, and personality disorder were less likely than not incurred in or caused by his military service. The examiner stated that there is no evidence to suggest that the Veteran's symptoms have met the criteria for PTSD or that any diagnosed mental disorder is due to military service. The examiner noted that this opinion was based solely on a review of the record as no mental disorder C&P exams are of record. An addendum VA opinion was completed in October 2020. See October 2020 VA Addendum Opinion. The examiner opined that the record does not support a nexus between the Veteran's current mental disorders and military service because there are no mental disorder VA examinations of record, no evidence of mental health treatment in service or in the years right after service, and a lack of evidence that the Veteran's mental health symptoms are due to a specific incident or incidents. 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. 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). The Board finds the October 2020 VA medical opinions inadequate. See October 2020 VA Addendum Opinion. The Veteran contends his depression is due to the circumstances surrounding his discharge from active service. Review of the military personnel records reveal that the Veteran underwent a court martial resulting in a bad conduct discharge that was subsequently upgraded to a discharge under honorable conditions. The Veteran's mental health treatment notes report that he frequently speaks about his time in the military, specifically his imprisonment and resulting distrust as a result of these experiences. While the examiner considered many of the Veteran's treatment records, the examiner failed to consider a mental health admission evaluation note indicating that the Veteran "thinks [his depression] goes back to [his] military service at Fort Hood when [he was] sick, [and] couldn't do guard duty." See September 2014 CAPRI Records. This statement is particularly important to consider as the Veteran's records do not include a separation examination. See Service Treatment Records. Any etiology opinion must take into account the Veteran's medical history. Regrettably, for the above reasons the Board finds that there has not been substantial compliance with its previous remand directives. As such, this matter must be remanded for an addendum VA medical opinion that complies with the Board's remand directives and considers all the evidence of record. The matter is REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain a VA medical opinion from a psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder. The entire claims file should be made available to the examiner in conjunction with the examination. The Veteran should only be scheduled for an examination if the examiner determines this is necessary to provide the requested opinions. The examiner should list all psychiatric disorders present during the time period of the claim (July 2013 to the present). With regard to each identified acquired psychiatric disorder present during the claim, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder originated during or is otherwise etiologically related to the Veteran's military service. If PTSD is diagnosed, the specific stressor or stressors giving rise to the condition must be identified. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner must consider and discuss the treatment records reflecting consistent grievances pertaining to his time in the military, specifically his negative experiences surrounding the circumstance of his court martial and resulting confinement and his subsequent distrust and fear of authorities. The examiner should specifically address the social work note reporting that the Veteran reverts back to his military experiences in every session and mental health note that the Veteran believes his depression began in military service. See CAPRI Records September 2014; see also CAPRI Records April 2015; see also CAPRI Records September 2015. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page) (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.