Citation Nr: 19130780 Decision Date: 04/19/19 Archive Date: 04/19/19 DOCKET NO. 11-10 929 DATE: April 19, 2019 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, is remanded. Entitlement to service connection for residuals of a concussion is remanded. Entitlement to service connection for a skin disorder, to include as secondary to an acquired psychiatric disorder, 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 January 1988 to July 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2014 and August 2015, the Board remanded the case for additional development. In January 2018, the Board, as relevant, denied service connection for a back disorder, acquired psychiatric disorder, residuals of a concussion, and a skin disorder and entitlement to a TDIU. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision and remanded the issues for further consideration. Consequently, such matter now returns to the Board. The Board observes that, in February 2019, the Veteran filed a motion to advance his case on the docket based on severe financial hardship in light of his pending homelessness and submitted supporting documentation. As good cause has been shown, such motion is granted. 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for a back disorder. In the October 2018 JMPR, the parties noted that the Board found that the record reflected that the Veteran was treated for a back strain in service, but did not report ongoing back problems and his separation examination was negative for any complaints, treatment, or diagnosis referable to a back disorder. Furthermore, both the June 2012 and October 2014 VA examiners found that the Veteran’s back disorder was less likely than not related to his in-service low back strain/right inguinal strain. As rationale for their opinions, they reported that the Veteran had an unremarkable discharge examination, he was seen once while in service for an episodic event with no evidence of chronicity or residual effect, he was not seen again until 2009 and did not complain of back pain, and his multiple physical jobs following service and his weight gain likely contributed to his back disorder. However, as noted in the JMPR, the Board’s and VA examiners’ rationales improperly relied upon the absence of evidence, specifically a lack of documented treatment while in service and after separation. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (“the absence of evidence is not substantive negative evidence without ‘a proper foundation … to demonstrate that such silence has a tendency to prove or disprove a relevant fact.’”). Therefore, a remand for an addendum opinion is necessary. 2. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia. In the October 2018 JMPR, the parties found that the Board erroneously relied upon an April 2016 VA opinion that determined that there was clear and unmistakable evidence that the Veteran’s diagnosed acquired psychiatric disorder of major depressive disorder preexisted service. Here, the parties indicated that both the Board and the April 2016 VA examiner found that he had provided inconsistent statements and lacked credibility with respect to his depressive symptoms before, during, and after service; however, also relied upon such statements to rebut the presumption of soundness. The parties further indicated that the evidence of record did not demonstrate that the Veteran had infractions for drunk driving, assault, passing bad checks, and vehicular accidents, for which he was cited in service, prior to service. Thus, the parties concluded that it was unclear how the Board found the Veteran’s statements sufficient to meet the high burden of clear and unmistakable evidence to rebut the presumption of soundness. Furthermore, while the April 2016 VA examiner found, in the alternative, that the Veteran’s major depressive disorder was less likely than not related to his military service, to include his alleged fights with his fellow service members and the resulting head injuries and/or as a result of his September 1988 motor vehicle accident, she did not provide a rationale for such opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion … must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Consequently, the Board finds that a remand for an addendum opinion is necessary. 3. Entitlement to service connection for residuals of a concussion. In the October 2018 JMPR, the parties found that the Board relied upon an inadequate examination conducted in July 2012 in denying the Veteran’s claim for residuals of a concussion. Specifically, at such time, the examiner found that the Veteran did not have/never had a traumatic brain injury (TBI) or any residuals thereof. Here, he reported that the Veteran’s account of his head injury did not match that given in records at the time of the incident or any subsequent records. He further reported that the Veteran’s account of chronic daily headaches every day since his head injury, but none before, was also not consistent with the available medical records. Here, the examiner explained that, if the Veteran was having chronic bilateral daily headaches as he claimed, the most likely etiology would be medication overuse as he described taking Aspirin and Ibuprofen several times a day every day. Additionally, he noted that, while there was evidence of a head injury during service, there was no record of loss of consciousness, and the Veteran recovered without residuals. He concluded that the Veteran’s symptoms were not caused by or a result of his head injury during service. However, as noted in the JMPR, the non-documentation of loss of consciousness as described by the July 2012 VA examiner is not consistent with the evidence of record. Specifically, the examiner reported that, while there was evidence of a head injury during service, there was no record of loss of consciousness. To the contrary, a service treatment record dated a few days following the Veteran’s motor vehicle accident in September 1988 reflects that he did in fact suffer a loss of consciousness. Here, such record, dated September 21, 1988, reveals that he suffered a head injury three days prior, which required 5-6 stitches; and reported he was unconscious for an unknown period of time. Therefore, the July 2012 opinion appears to be based on an incomplete factual history. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on inaccurate factual premise are not probative). Therefore, a remand for an addendum opinion is necessary. 4. Entitlement to service connection for a skin disorder, to include as secondary to an acquired psychiatric disorder. 5. Entitlement to a TDIU. The Veteran’s claim for a skin disorder, to include as secondary to an acquired psychiatric disorder, is inextricably intertwined with the remanded claim for service connection for such acquired psychiatric disorder. Furthermore, his claim for entitlement to a TDIU is inextricably intertwined with the remanded claims for service connection. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran’s skin disorder and TDIU claims must be deferred pending the outcome of the remanded claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Therefore, adjudication of such claims must be deferred pending the outcome of the aforementioned claims remanded herein. The matters are REMANDED for the following action: Forward the record to an appropriate medical professional so as to render the requested opinions. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. The need for additional examinations of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: Back Disorder Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current back disorder was incurred in or is otherwise related to his military service, to include his in-service low back strain/right inguinal strain? In offering such opinion, the examiner is advised that the sole basis for a negative nexus opinion cannot be the lack of documented complaints or treatment during the remainder of the Veteran’s service or after his discharge. Acquired Psychiatric Disorder (A) For each current acquired psychiatric disorder, is there clear and unmistakable evidence that such pre-existed the Veteran’s entry to active duty in January 1988? (i) If there is clear and unmistakable evidence that the disorder pre-existed service, is there clear and unmistakable evidence that such did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of such disorder, was such increase clearly and unmistakably due to the natural progress of the disease? (ii) If there is no clear and unmistakable evidence that the disorder pre-existed service, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is directly related to service, to include the Veteran’s alleged fights with his fellow service members and the resulting head injuries and/or as a result of his September 1988 motor vehicle accident? In offering such opinion, the examiner should address the Veteran’s inconsistent statements with respect to his mental health symptoms prior to service. Residuals of a Concussion Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has any residuals of a concussion sustained during his military service, to include his motor vehicle accident? If so, please identify such residuals. In rendering such opinion, the examiner should consider and discuss the September 21, 1988, service treatment record reflecting the Veteran’s report of loss of consciousness for an unknown period of time coincident with his motor vehicle accident. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel