Entitlement to service connection for an acquired psychiatric disability is remanded.

Citation Nr: 26001462 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 14-09 685 DATE: January 30, 2026 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating for individual employment (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1975 to May 1982. This matter was most recently before the Board in a December 2024 decision wherein the Board remanded the claim for service connection of an acquired psychiatric disability and entitlement to TDIU in order to acquire a medical opinion regarding the Veteran's acquired psychiatric disorder. Having attempted to acquire a VA medical opinion the agency of original jurisdiction (AOJ) continued the denial and returned the matter to the Board in a May 2025 Supplemental Statement of the Case (SSOC). 1. Entitlement to service connection for an acquired psychiatric disability is remanded. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In the November 2022 Board remand, it was found that the Veteran incurred a closed head injury during service with documentation of a performance change thereafter. The Board then found that a medical opinion based on these previously unconsidered records was necessary. While the AOJ scheduled the Veteran for several VA examinations, he failed to appear. As pointed out by the Veteran's representative, the Veteran has periods of time when he cannot be reached due to his housing situation. In the December 2024 Board remand, in consideration of the above, the Board found that an examination is unnecessary on this matter but rather an opinion will suffice as there is sufficient evidence of record for a records review. Following the December 2024 Board remand the AOJ again attempted to schedule the Veteran for an in-person examination to no avail. Again, the Veteran's representative pointed out that attempting to schedule an in-person examination for the Veteran was a "wild goose chase" and requested the AOJ to follow the Board's remand directives of obtaining a VA medical opinion without scheduling an examination. In the May 2025 SSOC which continued the denial of service connection, the AOJ explained that "all mental examiners are prohibited from providing opinions without having seen the Veteran." As the AOJ did not acquire a medical opinion without scheduling the Veteran for an in-person examination there was not substantial compliance with the Board's prior remand directives. Stegall, 11 Vet. App. at 271. The Board is cognizant of the general ethical rules against providing medical opinions without having conducted an examination that bind psychiatrists. See Section 7.3 of The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry. However, the Board notes that the rendering of expertise and/or an opinion in forensic cases and consultative roles is permissible "because there is a court authorization for the examination (or an opinion without examination), and this work is conducted within an evaluative framework including parameters for how and where the information may be used or disseminated." See American Psychiatric Association Ethics Committee, Opinion Q.7.b (March 15, 2017), https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/Ethics/APA-Ethics-Committee-Goldwater-Opinion.pdf. The AOJ has the authority to obtain advisory medical opinions in certain instances under 38 U.S.C. § 5109 and 38 C.F.R. § 3.328. The issue under consideration (service connection for an acquired psychiatric disorder) poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required in the present case. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. In this regard, in the present case a medical opinion is necessary and the Veteran has a right to compliance with prior Board remands ordering such. See Stegall, 11 Vet. App. at 271. The Veteran's representative has repeatedly stated that the Veteran's presence at an examination cannot be arranged and has repeatedly requested a medical opinion without an examination. As such, a medical opinion given without examination must be obtained. The Board acknowledges the private opinion provided and the unduly long adjudicatory period. The probative value of a medical opinion is based, in part, on whether the examiner relied upon an accurate factual predicate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). The Board is the ultimate fact finder on matters which do not require medical training. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011). The facts relied on by the private examiner is not consistent with material facts seen by the Board. Accordingly, due to the complex nature of the situation, on remand, the AOJ must follow its established procedures for requesting an advisory IME opinion on the issue of service connection for an acquired psychiatric disorder, and such must be furnished by a medical school, university, or clinic. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. 2. Entitlement to TDIU is remanded. The Veteran appeals denial of a total disability rating for compensation based on individual unemployability. This issue is inextricably intertwined with the service connection claim being remanded above. (continued on the next page) The matters are REMANDED for the following action: 1. Associate with the claims folder updated treatment records. 2. Secure an independent medical expert (IME) opinion under 38 U.S.C. § 5109 and 38 C.F.R. § 3.328, for the issue of service connection for an acquired psychiatric disorder. That is, the psychiatric issue under consideration poses a medical problem of such obscurity or complexity and/or has generated such controversy in the medical community at large that an advisory opinion from an IME is required in the present case. The AOJ must follow its established procedures for requesting an advisory IME opinion on the psychiatric issue, furnished by a medical school, university, or clinic. The entire claims file should be made available to and be reviewed by the IME examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The IME examiner must respond to the following inquiries: (a.) Is it at least as likely as not (i.e., likelihood is approximately balanced or nearly equal, if not higher) that the Veteran manifests residuals of TBI from a closed head injury in service and/or an acquired psychiatric disorder which had its onset in service or is otherwise causally related to service. The examiner should specifically consider the August 1981 hospitalization records wherein the Veteran was involved in a motorcycle accident while in Germany and was hospitalized for 5 days. He was discharged with diagnoses of cerebral concussion and conversion reaction-transient situational disturbance. A CT scan of the brain was interpreted as normal. There was also an evaluation for possible malingering. The examiner should also consider the Veteran's performance appraisals before and after the August 1981 injury including his service in the U.S. Army Reserve until 1998 as well as the formal medical examinations. The examiner should further consider the opinions from Dr. Q.S. who stated that the Veteran reported that he began experiencing difficulties with thinking, motivation, disorganization, and psychosis in late 1981 or early 1982, and analyze whether that is consistent with the Veteran's performance while with the U.S. Army Reserves. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biggs, Andrew J. 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.