Citation Nr: 22045815 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 14-29 145A DATE: August 11, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include as secondary to his service-connected low back disability and right knee disability, is remanded. REASONS FOR REMAND The Veteran had active military service from August 1989 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in October 2018, the Board granted the Veteran's petition to reopen his claim for entitlement to service connection for a low back disability. The Board remanded his service connection claim for a low back disability and acquired psychiatric disability, and his petition to reopen his claim for a right knee disability. In May 2021, the Board granted his petition to reopen his claim for entitlement to service connection for a right knee disability. The Board remanded the claim for service connection for a low back disability, right knee disability, and acquired psychiatric disability for further evidentiary development and adjudication. During the appeal process, in a May 2022 rating decision, the RO granted the issues of entitlement to service connection for a low back disability and right knee disability. As such, the claim for low back disability and right knee disability is no longer before the Board. The appeal is once again before the Board. However, the Board finds that the RO did not substantially comply with the May 2021 Board remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to his service-connected low back disability and right knee disability, is remanded. The Board finds that additional development is needed before the Veteran's claim can be decided, as the RO did not substantially comply with the May 2021 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran claimed that his acquired psychiatric disability is secondary to his service-connected low back disability and right knee disability. See October 2018 Appellate Brief. At the outset, the Board notes that the October 2019 VA examiner diagnosed the Veteran with major depressive disorder, cocaine use disorder, and alcohol use disorder. A review of the service treatment records shows that he had normal psychiatric condition with no endorsement of having frequent trouble sleeping, depression or excessive worry, loss of memory, or nervous trouble of any sort in the December 1988 enlistment examination and November 1992 separation examination. See September 2014 STR Medical. The post service treatment records show that in a November 2011 VA treatment record the Veteran reported that he has a history of depression dating back to his childhood which was the 'beginning of [his] depression.' See March 2012 CAPRI. The Veteran was afforded a VA examination in October 2019 wherein the examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that although the Veteran has a long history of mental health issues, the examiner could not find any verification in his service records that he was treated for mental health as claimed by the Veteran. In May 2021, the Board determined that the October 2019 medical opinion was inadequate and remanded the issue to afford the Veteran another VA examination. The Veteran did not appear for his VA examination and no good cause was submitted. The Board finds that regardless of the Veteran's failure to attend his VA examination, an addendum medical opinion is required to adjudicate the claim. As such, a remand is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of any acquired psychiatric disability. If the Veteran fails to appear, then obtain an addendum medical opinion by an appropriately qualified examiner to determine the nature and etiology of any acquired psychiatric disability. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. A record of the review of the claims file should be documented in the examination report. All indicated diagnostic tests should also be completed. The examiner should respond to the following: The examiner must identify/diagnose any acquired psychiatric disability that presently exists or that has existed during the appeal period. Then, with respect to each such disorder, the examiner is asked to address whether there is clear and unmistakable evidence that the disorder pre-existed the Veteran's entrance into active-duty service? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. If clear and unmistakable evidence is found, it must be clearly identified for the record. (a) If there is clear and unmistakable evidence that an acquired psychiatric disability pre-existed the Veteran's service, is there clear and unmistakable evidence that such pre-existing acquired psychiatric disability was NOT aggravated during his service? (b) If there is no clear and unmistakable evidence that an acquired psychiatric disability pre-existed service, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's acquired psychiatric disability began during, or is otherwise related to, his active-duty service. The examiner is reminded that an absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The examiner must also opine that for each diagnosed acquired psychiatric disability, whether it is at least as likely as not that the Veteran's acquired psychiatric disability was (a) caused by or (b) has been aggravated (worsened beyond the natural progress of the disorder) by his service-connected low back disability and/or right knee disability. If the examiner finds that the Veteran's acquired psychiatric disability was aggravated by his service-connected low back disability and/or right knee disability, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to the service-connected disability. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation 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. Christopher Seppanen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.