Citation Nr: 22016263 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-18 217 DATE: March 21, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for substance abuse is remanded. Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1972 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2017. A transcript of the hearing is associated with the claims file. A November 2021 Board Decision remanded the above matters for action consistent with a Joint Motion for Remand (JMR) submitted by both parties and granted by the United States Court of Appeals for Veterans Claim (Court) in December 2020. Specifically, the Board found that opinions obtained pursuant to an April 2021 Board remand were inadequate. Unfortunately, although the RO obtained multiple medical opinions in December 2021, the Board finds that these opinions do not substantially comply with the Board's remand directives, so further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. 2. Entitlement to service connection for substance abuse is remanded. The Board directed the RO to obtain an opinion regarding "whether the Veteran's acquired psychiatric diagnoses diagnosed during the appeal period [] are at least as likely as not (probability of at least 50 percent) etiologically related to active duty military service, to include his credible reports of in-service personal assault." Following the November 2021 Board Decision which remanded these claims, the RO obtained several opinions from a VA examiner signed December 9, 2021. The RO properly determined that those opinions were inadequate as they had an inaccurate factual basis. See, e.g., December 2021 VA Examiner's Opinion (erroneously including as part of her rationale for a negative opinion: "There is no evidence of mental health treatment since 2009."). The RO then obtained additional opinions from another VA examiner. Those opinions are conflicting, inadequately address new issues (such as whether the Veteran's substance abuse disorder pre-existed his military service), and otherwise fail to adequately address the questions to which the Board requires an answer. For example, the December 2021 VA Examiner's Opinion states, as part of the rationale for a negative direct service connection opinion,: "The ongoing argument is if the veteran had mental health issues in the service that led to his using the substances wherein it has now been stated there is 'credible evidence' [sic]. I disagree that there was any mental health issues [sic] that prompted the drug abuse, despite the veterans [sic] continued report of the rights he was engaged in." This statement indicates that the VA examiner misunderstood the Board's directive that there is credible evidence of an in-service personal assault and implies that she thought the Board's directive referred to either credible evidence of in-service mental health issues or in-service substance abuse. In any case, the rationale is illogical and addresses issues not pertinent to the claim. This is further supported by the fact that the opinions this VA examiner simultaneously provided on other issues also contain statements indicating she misunderstood the Board's request. See December 2021 VA Examiner's Opinion (Secondary Service Connection) ("It is in my medical opinion that it is less likely than not that he has psychiatric conditions related to the service and therefore less likely than not that he had any psychiatric disorder to be 'aggravated.'"). Importantly, none of the posed questions require any opinion regarding whether a psychiatric disorder was aggravated by service. Rather, the only secondary service connection issue with respect to these claims is whether the Veteran's substance abuse disorder (if he had one at any time from March 2009 to the present) was caused or aggravated by the diagnosed acquired psychiatric conditions. Unfortunately, remand is again required in order to obtain adequate opinions. See February 2022 Written Brief Presentation (emphasizing the need to comply with prior remand instructions). 3. Entitlement to service connection for hepatitis C is remanded. As the Veteran's claim of entitlement to service connection for hepatitis C is inextricably intertwined with the claims of entitlement to service connection for an acquired psychiatric disorder and substance abuse, it must also be remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to the Present. 2. Forward the Veteran's claims file to an appropriate clinician other than the VA examiners who provided the June 2021 and December 2021 addendum medical opinions. The examiner must review the complete claims file including this remand. After review of the claims file, the examiner must respond to the following: a. Are any of the Veteran's acquired psychiatric conditions, diagnosed since the Veteran's March 2009 Application for Compensation and/or Pension, at least as likely as not related to service, to include his credible reports of in-service personal assault? In making this opinion, the examiner must discuss the Veteran's VA treatment records documenting diagnoses for psychiatric conditions throughout the appeal period, including, but not limited to, his August 2015 diagnoses of psychosis, depression, and unspecified anxiety state. The examiner is reminded that "current disability" for VA purposes means that the Veteran has a disability "at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 322 (2007). Even if the examiner determines that the Veteran does not have a present psychiatric diagnosis, the examiner must opine as to all diagnosed psychiatric conditions noted throughout the appeal period. b. Does the Veteran have a current substance abuse disability that has manifested at any point since his March 2009 Application for Compensation and/or Pension? The examiner must discuss the Veteran's VA treatment records documenting a possible recent history of potential substance abuse. Again, the examiner is reminded that "current disability" for VA purposes means that the Veteran has a disability "at the time a claim for VA disability compensation is filed or during the pendency of that claim." Even if the examiner determines that the Veteran does not have a present substance abuse disability, the examiner must opine as to any substance abuse disability that manifested during the appeal period. c. If the Veteran has a current substance abuse disability, is it at least as likely as not caused or aggravated by any of his diagnosed acquired psychiatric conditions? All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. A discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.