Citation Nr: 21032615 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 10-39 470 DATE: May 27, 2021 REMANDED The issue of entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1974 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in November 2017 and May 2019. The case has been returned to the Board for review. In October 2011, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. 1. The issue of entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran asserts that he has an acquired psychiatric disorder that is related to his active service. During the period on appeal, the Veteran has received diagnoses of depression, bipolar disorder, generalized anxiety disorder, somatic pain disorder, and personality disorder. In its May 2019 remand, the Board directed that the Veteran be scheduled a VA examination to address the nature and etiology of any acquired psychiatric disability. The Board further directed, in part, that the VA examiner identify all psychiatric disabilities present during the pendency of the appeal and proximate thereto and if any previously diagnosed disorder is no longer present, the examiner must provide an explanation. The Veteran was provided a VA opinion in December 2020. The VA examiner reviewed the record and diagnosed the Veteran with personality disorder. The VA examiner reported that during the period on appeal the Veteran did not meet the criteria for depression, bipolar disorder, generalized anxiety disorder and/or somatic pain disorder. Related to generalized anxiety disorder, the VA examiner reported that at the time of the 2008 and 2016 VA examinations the Veteran did not meet the criteria for generalized anxiety disorder. However, the VA examiner did not address the August 2012, March 2013, and April 2013 diagnosis and treatment for generalized anxiety disorder by Dr. D. or the 2007 diagnosis and treatment for generalized anxiety disorder by Dr. S. as directed by the November 2017 and May 2019 Board remands. As such, the December 2020 VA examination does not substantially comply with the Board's remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). On remand the VA examiner must determine whether during the appeal period the Veteran had a diagnosis of anxiety and if so whether it is directly related to his active service. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from April 2018. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from April 2018 to the present. 2. Forward the record and a copy of this remand to the examiner who provided the December 2020 VA opinion, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Provide a diagnosis for any psychiatric disability demonstrated since service, found on current examination or in the record. The VA examiner must address the August 2012, March 2013, and April 2013 diagnosis and treatment for generalized anxiety disorder by Dr. D. and the 2007 diagnosis and treatment for generalized anxiety disorder by Dr. S. In providing the above diagnoses, the examiner should be mindful that even if a psychiatric disability has resolved, an opinion is still required regarding the etiology of the diagnosed disabilities. See McClain v. Nicholson, 21 Vet. App. 319 (2007). (b.) Does the Veteran have a psychiatric disability that clearly and unmistakably existed prior to his active service? If so, was any such psychiatric disability clearly and unmistakably not aggravated by active service? The Board notes that the Veteran's lay statements standing alone are not a sufficient basis to support a finding that a psychiatric disability clearly and unmistakably existed prior to active service. (c.) With regard to any psychiatric disability NOT found to clearly and unmistakably exist prior to the Veteran's active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any psychiatric disability (even if since resolved), had its onset during the Veteran's active service, or is otherwise etiologically related to such service, to include psychiatric symptoms of nervousness and assessments of acute situational reaction and passive dependent personality dated in May 1974 and June 1974. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.