Citation Nr: 21000153 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-57 411 DATE: January 4, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to service connection for a psychiatric disability is remanded. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and housebound benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to June 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2013 and July 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and September 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for pseudofolliculitis barbae (PFB).     VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).     The Veteran was most recently provided VA skin disease examination in June 2020.  The Board finds the June 2020 VA examination to be incomplete for rating purposes and further examination is required.  During the examination, the examiner stated that there was a single entry regarding PFB in the service treatment records dated in March 1983. There was no evidence that the Veteran's PFB was a chronic condition while on active duty. The Veteran stated that he had a beard for over two years after leaving service and didn't shave, therefore, there was no continuity of a claimed chronic condition. The Veteran denied ever seeking medical treatment from a primary care provider or a dermatologist for PFB. The June 1984 service separation physical noted the skin as normal. There was absolutely no evidence of a chronic disabling skin condition with nexus to service. The Veteran had mild hyperpigmentation under the chin and around the neck area with less than five visible papules. No irritation or erythema was noted. When asked if the Veteran previously had a skin condition that was now completely resolved and no longer required treatment of any type, the examiner did not provide a response. The Board finds the June 2020 VA skin examination to be incomplete, as the examiner did not provide an adequate rationale to support the opinion. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). The Board finds that rationale to be inadequate as the examiner did not properly explain what led to the opinion and cited no supporting evidence. The examiner reviewed the medical evidence of record for the claimed disability but did not explain how the evidence related to the medical opinion that the claimed disability was not related to service. In essence, the examiner provided a negative opinion based on the fact that the Veteran did not complain of the claimed disability continuously since service. As the June 2020 VA examiner relied on the absence of symptoms or treatment in service for the negative opinion concerning the claimed disability, and did not provide an adequate rationale, the opinion is incomplete.  Accordingly, the Board finds June 2020 VA skin examination report to be incomplete for rating purposes. Therefore, the Board finds that remand is necessary for an adequate etiology opinion regarding the claimed disability.     The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655. 2. Entitlement to service connection for a psychiatric disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a psychiatric disability. As an initial matter, the Board finds that the September 2020 private psychiatric nexus opinion is incomplete. The Board finds that the private examiner's ultimate finding is incongruous with the evidence presented. The examiner found that the Veteran's psychiatric condition more likely than not started in service and was ongoing until the present. However, the evidence outlined, or available of record does not show any treatment, complaint, or diagnosis of any psychiatric condition during or directly after service. Even the supportive medical documentation listed within the opinion letter demonstrates a gap of nearly 27 years between any indication of a psychiatric condition during the Veteran's service in 1984 and the first diagnoses of depression in 2011. The examiner did not provide any explanation for that gap between service and first diagnosis. The Board notes that there is evidence of record that suggests that the Veteran may have had a psychiatric disability prior to service. In a May 2008 psychiatric evaluation addendum, the Veteran stated that he had experienced bouts of depression since his teenage years and could not remember ever feeling happy. The September 2020 private medical examiner made no note of that evidence and did not reconcile that evidence with the opinion that the Veteran's depression began during service. While the September 2020 private examiner provided a positive opinion relating a psychiatric disability to service, there is no corroborating evidence of record that the claimed stressor occurred as described by the Veteran. The question of whether the Veteran was exposed to a stressor in-service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 406 (1991). An opinion may be discounted if it materially relies on a lay person's unsupported history as the premise for that opinion; a doctor's opinion must be substantiated by the evidence of record. Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, whether a stressor was of sufficient gravity to cause or support a psychiatric diagnosis is a question of fact for medical professionals. Whether the evidence establishes the occurrence of a claimed stressor or in-service event is a question of fact for adjudicators. The Board finds that the credible and competent evidence currently of record does not support the Veteran's assertions of the stressor events claimed to have occurred as the Veteran asserts they occurred. However, in light of the evidence and arguments of record, the Board finds that additional development is necessary prior to adjudication of the claim. An opinion, report, or other evidence from the appropriate records depositories is needed to address the issue of whether the Veteran was disciplined as a result of a fight while in-service and sent to the brig for 45 days as a result. To satisfy VA’s duty to assist, the RO should further develop the claim by seeking an additional response from the Joint Service Records Research Center (JSRRC). Accordingly, because the Veteran’s psychiatric disability may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran’s psychiatric disabilities and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to service connection for obstructive sleep apnea is remanded. Because a decision on a claim for service connection for a psychiatric disability could significantly impact a decision on the issue of entitlement to service connection for sleep apnea, which is also claimed as secondary to a psychiatric disability, a determination cannot be made on the claim until a decision has been made on the claim for service connection for a psychiatric disability. The Veteran has provided a private opinion noting an etiological nexus between sleep apnea and the claimed psychiatric disability. As a result, the Board finds that those claims are inextricably intertwined, and remand is required for the sleep apnea claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, as there is some evidence of a secondary etiological connection between the claimed sleep apnea and a pending claim for service connection, the issue must be considered inextricably intertwined and remand is required. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. 5. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and housebound benefits is remanded. The Board finds that the issues of entitlement to SMC and entitlement to TDIU are inextricably intertwined with the issues of entitlement to service connection for a psychiatric disability, obstructive sleep apnea, and pseudofolliculitis barbae. Issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be made until the other issue has been considered. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, since the service connection claims are being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider these derivative claims prior to the determination of such other claims. Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, a decision on the issue of entitlement to SMC and a TDIU must be deferred until after the outcome of the claims for service connection. The matters are REMANDED for the following action: 1. Contact National Personnel Records Center (NPRC), the Joint Services Records Research Center (JSRRC) or any other appropriate repository or service department research facility and request an opinion as to whether it is at least as likely as not that the Veteran was sent to the Brig for 45 days while on active duty. A copy of any requests sent to the JSRRC or other appropriate entity, and any reply, to include any negative reply, should be associated with the claims file. If the event is not verified, an official determination so indicating should be entered into the record. 2. Contact the Veteran and request that he provide information as to treatment for all the claimed disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA.  On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record.  If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e).  3. Send to the Veteran and representative a letter requesting that the Veteran furnish any additional information or evidence pertinent to the claim for TDIU. The letter should specifically notify the Veteran of the criteria to establish entitlement to a TDIU. 4. Then, schedule the Veteran for a VA skin examination, with a medical doctor who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any current skin disability.  The examiner must review the claims file, including this Remand and the Board’s February 2019 Remand, and should indicate review of the file in the report.  The examiner should diagnose all skin disabilities found, or shown in the record during the pendency of the claim.  The examiner should reconcile the diagnosis with the previous evidence of record.  For each skin disability diagnosed the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any skin disability is etiologically related to active service or any event, disease, or injury during service, including whether any skin disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability or treatment for any service-connected disability, to include hypertension, or (5) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to include hypertension. The examiner should address the Veteran’s lay statements regarding the claimed disability and its etiology and symptoms during and since service.  The examiner must consider and discuss the lay statements regarding symptoms during and since service and should reconcile the opinion with any previous opinions of record.  A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability.  In writing the report, the examiner must specifically address the significance, if any, of the Veteran’s March 1983 in-service treatment for PFB as it relates to the current claimed disability. 5. Schedule the Veteran for a VA psychiatric examination. The examiner must review all pertinent records associated with the claims file, including this Remand, and the private June 2020 medical opinion, and indicate review of the file in the report. Any studies or tests deemed necessary should be performed. The examiner is requested to provide the following information: (1) The examiner should provide a full multiaxial diagnosis of every psychiatric disability found, and should specifically state whether a diagnosis of depression is warranted and why or why not; (2) for each diagnosed psychiatric disability, the examiner should opine whether there is clear and unmistakable evidence that the psychiatric disorder existed prior to service. The examiner identify any clear and unmistakable evidence with specificity; (3) If there is clear and unmistakable evidence that a psychiatric disability existed prior to service, the examiner should opine whether there is clear and unmistakable evidence that the psychiatric disability did not increase in severity beyond the natural progression of the disease during service. The examiner should identify any evidence to support that finding with specificity. If there is NOT clear and unmistakable evidence that a psychiatric disorder existed prior to service, the examiner should (4) opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disability was incurred in, is caused by, or is causally related to any event or incident during active service. The examiner must reconcile that opinion with the opinion provided by private psychologist in June 2020. The examiner should address the lay statements of record regarding the changes in the Veteran's behavior after service. The examiner must consider and discuss those lay statements regarding symptoms during and since service and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and must not be based solely on a lack of an in-service record of the claimed disability. 6. Then, schedule the Veteran for an examination by an appropriate clinician for sleep apnea. The examiner must review the claims files and should note that review in the report. The examiner should provide a comprehensive report including a complete rationale for all opinions and conclusions reached. After conducting an examination of the Veteran and performing any clinically indicated diagnostic testing, the examiner should opine regarding whether it is at least as likely as not (50 percent or greater probability) that sleep apnea (1) had its onset during active service; (2) is related to any in-service disease, event, or injury; (3) is due to or the result of a service-connected disability; or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by a service-connected disability. A clearly stated rationale for each opinion offered must be provided and must not be based solely on a lack of an in-service record of the claimed disability. (Continued on the next page)   7. Then, schedule the Veteran for an aid and attendance or housebound examination by an appropriate clinician. The examiner must review the claims files and should note that review in the report. The examiner should provide a comprehensive report including a complete rationale for all opinions and conclusions reached. The examiner should opine whether the service-connected disabilities preclude the Veteran from dressing himself, keeping himself clean and presentable, or feeding himself. The examiner should opine whether the Veteran is he able to attend to the wants of nature including urination, defecation, and cleaning himself. The examiner should opine whether the Veteran’s disabilities preclude him from being able to protect himself from the hazards and dangers of daily life and environment. The examiner should state whether or not the Veteran is bedridden. The examiner should state whether or not the Veteran has the anatomical loss or loss of use of any of appendages, and if so, at what point the loss of use occurred. The examiner should opine whether the Veteran has loss of use of any of extremities such that he would be equally well served by amputation with prosthesis. The examiner should state whether or not the Veteran is confined to his home or premises due to the service-connected disabilities. The examiner should state whether due to service-connected disability there is loss of use of either lower extremity with so little function remaining in either lower extremity such that the Veteran would be equally well served by amputation with prosthesis. All opinions should be supported with explanatory rational. 8. Then, schedule the Veteran for a VA examination with an appropriate physician. The examiner must review the claims file and should note that review in the report. The examiner should examine the Veteran and describe the functional limitations and employability limitations caused by each service-connected disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. If the Veteran is found unemployable due to the service-connected disabilities, the examiner should opine when the Veteran became unemployable due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.