Citation Nr: 18148662 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 11-18 191 DATE: November 8, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to July 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2009 by a Department of Veterans Affairs (VA) Regional Office. In August 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2015, the Board remanded the Veteran’s claims for additional development. Thereafter, in July 2017, the Board denied, as relevant, service connection for an acquired psychiatric disorder and remanded the claim of entitlement to a TDIU for additional development. The Veteran appealed the denial of the service connection claim to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the Board’s denial only to the extent that such denied service connection for an acquired psychiatric disorder as secondary to a lumbar spine disability and remanded it for further consideration. Therefore, such claim is again before the Board. Similarly, the Veteran’s claim of entitlement to a TDIU now returns from remand for further appellate review. The Board notes that a July 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted a temporary total evaluation, followed by a 20 percent rating, for the Veteran’s ventral incisional hernia; denied a rating in excess of 10 percent for scars in the midline of the epigastrium and above the umbilicus; and granted special monthly compensation (SMC) at the housebound rate from January 28, 2016, to April 1, 2016. Thereafter, the Veteran entered a notice of disagreement as to the propriety of the assigned ratings for his hernia and scar disabilities, and the effective date for the award of SMC. Additionally, in an October 2017 rating decision, the AOJ granted service connection for a lumbar spine disability with a rating of 20 percent; a right ankle disability with a rating of 10 percent; radiculopathy of the right lower extremity with a rating of 10 percent; and a surgical scar of the lumbar spine with a rating of 0 percent. In April 2018, the Veteran entered a notice of disagreement with regard to the propriety of the initially assigned ratings. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claims are still being developed by the AOJ. As a result, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. The Board further observes that additional evidence has been associated with the record since the AOJ last reviewed the Veteran’s claims. While the Veteran, through his representative, waived AOJ consideration of evidence he submitted in August 2018, he has not done so in regard to the remainder of the newly received evidence. Nonetheless, as his claims are being remanded, the AOJ will have an opportunity to review all the submitted documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. 1. Entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected lumbar spine disability. In the JMPR, the parties determined that the Board relied on an inadequate opinion in denying service connection for an acquired psychiatric disorder as secondary to service-connected lumbar spine disability in the July 2017 decision. In this regard, the parties observed that the August 2015 VA opinion, upon which the Board relied, did not explicitly consider whether his acquired psychiatric disorder was caused or aggravated by his lumbar spine disability as such was not yet service-connected. The parties further noted that such opinion indicated that the Veteran’s acquired psychiatric disorder was due to life stressors other than his service-connected disabilities, such as familial, legal, substance, employment, financial problems, and nonservice-connected physical disorders (at which time included the Veteran’s lumbar spine disability). They further observed that, at such time, the examiner noted his own statement from a July 2009 opinion that “past records refer to physical problems, such as … back problems as affecting his mood and functioning.” Consequently, in light of the JMPR, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing whether the Veteran’s acquired psychiatric disorder is caused or aggravated by his now service-connected lumbar spine disability. 2. Entitlement to a TDIU. The Veteran asserts that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. In this regard, a review of the record reveals that he meets the schedular threshold criteria for a TDIU for the entire appeal period stemming from his August 5, 2007, claim as all of his service-connected disabilities were found to be related to his right knee disability. 38 C.F.R. § 4.16(a) (disabilities resulting from common etiology or single accident are considered one disability for TDIU purposes). The record reflects numerous opinions addressing the impact the Veteran’s currently service-connected disabilities have on his employability. However, as noted above, his claim for service connection for an acquired psychiatric disorder is being remanded for additional development and, as the outcome of such claim may impact his TDIU claim, the latter matter must also be remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matter is REMANDED for the following actions: Return the record to the VA examiner who offered the August 2015 opinion regarding the etiology of the Veteran’s acquired psychiatric disorder. The record and a copy of this Remand must be made available to the examiner. If the August 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a full review of the record, the examiner should address the following inquiries: (A) Identify all current acquired psychiatric disorders. (B) For each currently diagnosed disorder, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is caused or aggravated by the Veteran’s service-connected lumbar spine disability. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In rendering such opinion, the examiner should consider the July 2009 VA opinion in which it was noted that “past records refer to physical problems, such as … back problems as affecting his mood and functioning,” and the August 2015 VA opinion in which it was determined that the Veteran’s acquired psychiatric disorder was related to factors other than his service-connected disabilities, to include nonservice-connected physical disorders (at which time included the Veteran’s lumbar spine disability). A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel