Citation Nr: 22014156 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 19-20 787 DATE: March 11, 2022 REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, this matter was last before the Board, at which time it was remanded for further development. 1. Entitlement to service connection for hepatitis C is remanded. The Veteran has asserted that he had a pre-discharge physical in December 1969 and that he had to sign a waiver regarding his claimed disabilities at that time. In March 2020, the Board noted that there were no such records in the claims file and remanded the matter to attempt to obtain any outstanding service records, to include any December 1969 treatment records from Phan-Rang Air Force Base (AFB) or any waivers that the Veteran may have signed regarding his discharge from service. If VA's efforts to obtain these records were unsuccessful, the Veteran was to be notified. Following the Board's remand, the agency of original jurisdiction (AOJ), rather than requesting these records from the appropriate service department, sent the Veteran a July 2020 letter asking if he had the records in his possession. When a remand is issued, the Appellant is entitled, as a matter of law, the right to compliance with the remanded order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ did not request the records as the Board directed, and there has not been compliance with the Board's remand directives. Accordingly, the matter is remanded. 2. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is remanded. In March 2020, the Board requested an addendum opinion to address this claim. In doing so, the Board directed that the VA examiner was to consider March 1983 VA treatment notes that documented that the Veteran began to feel depressed and have suicidal thoughts after receiving divorce papers while serving in Vietnam. In July 2020, the VA obtained the addendum opinion. The examiner offered a negative etiological opinion. However, while the examiner noted that they reviewed medical records that were generally dated in March 1983, they stated that the specific note referring to depression and suicidal thoughts was not "marked in the file," nor "abovementioned" as the examination request stated. The examiner did not review the specific note, but rather stated that any records from 1983 would not support the theory of entitlement. The specific record in question is dated March 3, 1983. The examination report does not comply with the Board's remand directives. While the examiner referred generally to March 1983 psychiatric notes, they did not address the specific record identified by the Board in its remand. Thus, there has not been compliance with the Board's remand directives, the claim is remanded. Id. Finally, the previous examiners were asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that the claimed disabilities were connected to service. This language found in the previous remands entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance - i.e. nearly equal - and does not require the evidence to be in exact equipoise. See id. The matters are REMANDED for the following action: 1. Attempt to obtain any outstanding records pertinent to the issues on appeal, to include any December 1969 treatment records from Phan-Rang AFB or any waivers the Veteran may have signed regarding his discharge from service. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38C.F.R. §3.159 (e). 2. Obtain an addendum medical opinion from the VA examiner that offered the July 2020 addendum opinion, if available, and if unavailable from an examiner with sufficient expertise to comment on the etiology of the Veterans psychiatric conditions. All pertinent evidence of record must be made available to and reviewed by the examiner. Specifically, the examiner's attention is directed toward the abovementioned March 1983 treatment notes, and in particular the March 3, 1983, service treatment record documenting depression and suicidal thoughts after the Veteran received divorce papers while in Vietnam. Following a review of the relevant records and lay statements, the examiner should offer an opinion with respect to whether any diagnosed psychiatric disability is at least as likely as not (an approximate balance of positive and negative evidence) related to his period of active service or is otherwise attributable to his period of active service. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If an examiner is unable to provide any required opinion, they should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, they must provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page) 3. Thereafter, and after conducting any additionally indicated development, readjudicate the claims on appeal. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.