Citation Nr: 21041049 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 15-41 793 DATE: July 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include antisocial personality disorder, attention deficit disorder (ADD), post-traumatic stress disorder (PTSD), depression, and substance abuse is remanded. Entitlement to a temporary total disability rating for hospitalization due to PTSD is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1974 to March 1977, with subsequent service in the United States Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of the July 2014 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was remanded in September 2018 for more development. In August 2020, the issues were again remanded for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Entitlement to service connection for an acquired psychiatric disorder, to include antisocial personality disorder, attention deficit disorder (ADD), post-traumatic stress disorder (PTSD), depression, and substance abuse is remanded. The Veteran contends that he was assaulted while in service. Specifically, in a December 2013 Statement in Support of Claim, the Veteran asserted that he was assaulted by German Nationals. He contended that he was injected with heroin in an attempt to have him kicked out of the Army for dating a white German police officer's daughter. In a second December 2013 Statement in Support of Claim, he also reported being assaulted by United States soldiers for the same reason. The Veteran's representative contends that there is a duty to assist error, because records pertaining to the Veteran's suspended Article 15, as well as the Army Drug Abuse and Prevention Control program (ADAPCP) had not been associated with the Veteran's claims file. The Veteran's representative also noted that the records regarding the Veteran's incarceration have not been secured. The Board finds that these records must be obtained prior to adjudicating this matter. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination for the Veteran's mental conditions. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, in March 2021, the Veteran was afforded an examination for mental conditions. The examiner opined that the claimed condition of PTSD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that the Veteran's claimed PTSD condition could not be reliably assessed due to the Veteran' state of intoxication. The examiner indicated that the substance disorder may be attributed to trauma, but at this point would just be speculative. The examiner also noted that there is no indication of any trauma that occurred during service contained within the Veteran's medical records, including "any associated markers of struggling with anxiety, stress or depression." The Board finds this examination to be inadequate, not because the examiner did not explain why the Veteran was intoxicated, but because this examination did not secure any additional evidence such as reconciling the previous medical opinions. The examiner stated that he reviewed the Veteran's entire case file but was unable to offer an opinion other than stating any opinion would be speculative because of the Veteran's intoxication. The Board also acknowledges that the Veteran's representative stated that the Board found the Veteran's stressor to be credible. However, this is a misrepresentation of the statements made in the August 2020 Board remand. The Board stated that the Veteran's stressor "may" be credible. However, the Board has not made a credibility determination yet. The Board must instead wait until all of the evidence is secured, and there is an adequate medical opinion that will allow the Board to assess the Veteran's claim. Thus, a remand is required to secure the outstanding records, and to obtain an adequate medical opinion that reconciles the previous medical opinions. 2. Entitlement to a temporary total disability rating for hospitalization due to PTSD is remanded. 3. Entitlement to service connection for hepatitis C is remanded. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Concerning the Veteran's remaining claims of entitlement to a temporary total rating, and service connection for GERD and hepatitis C, the Board finds these claims are inextricably intertwined with his PTSD claim as there are missing records; thus, a remand is warranted. The matter is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records and associate them with the Veteran's claims folder. 2. Attempt to obtain any outstanding service treatment records and military personnel records for all service periods, including active duty, ACDUTRA, and INACDUTRA. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. (Specifically, any records pertaining to the Veteran's suspended Article 15, Army Drug Abuse and Prevention Control program (ADAPCP) and the Veteran's incarceration). 3. Provide the Veteran with the necessary authorization forms to allow VA to obtain his treatment records from any identified correctional facilities. If the Veteran completes the necessary authorization forms, attempt to obtain these records from the identified correctional facility and associate the records with the claims folder. Reasonable attempts should be made to obtain such records. 4. Schedule the Veteran for a VA psychiatric examination, with a different examiner than the May 2014, or March 2021 examiners, to determine the nature and etiology of his psychiatric disorder. The Veteran's complete claims file including the August 2020 remand, and a copy of this remand must be provided to the examiner for review. All appropriate testing should be performed. After review of the record and examination: (a.) The examiner should first identify all psychiatric disorders found to be present. (b.) Determine if there is clear and unmistakable evidence that any identified psychiatric disorder existed prior to service? (c.) If an identified psychiatric disorder pre-existed service, is there clear and unmistakable evidence that the psychiatric disorder was NOT aggravated by the Veteran's active service? (d.) If any identified psychiatric disorder did not pre-exist service, is it at least as likely as not (50 percent probability or better) that the identified psychiatric disability had its onset in service, or is otherwise related to any injury, disease, or event incurred in service? (e.) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not related to a verified stressor. (f.) As to a personality disorder, if an acquired psychiatric disorder is found to have developed due to or during service, is there a disability resulting from such mental disorder superimposed upon a personality disorder? If the examiner finds that the Veteran does not meet the criteria for any diagnosis of an acquired psychiatric disorder of record, to include PTSD, he/she should explain the medical basis for that finding, and should reconcile his/her opinion with any conflicting findings and opinions of record, including the May 2014 PTSD examination, the November 2013 VA neuropsychological consult, and the March 2021 VA mental examination. The examiner MUST also reconcile that the Veteran had exemplary performance evaluations while in the Army reserves, but poor performance in Germany, and that the Veteran's representative suggests that the Veteran's performance improved because he was away from "racially motivated harassment." The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 5. Further develop the claims being remanded as necessary, to include providing VA examinations if warranted. 6. After the above development is completed, readjudicate the claims. The Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.