Citation Nr: 21003075 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-53 524A DATE: January 19, 2021 REMANDED Service connection for major depressive disorder, claimed as secondary to service-connected conditions, is remanded. Service connection for sleep apnea is remanded. Entitlement to an initial rating higher than 30 percent prior to March 02, 2020 and higher than 70 percent thereafter for service-connected insomnia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1953 to February 1980. The issues of service connection for major depressive disorder, entitlement to a higher initial rating for insomnia, and entitlement to a TDIU are on appeal from a September 2015 rating decision and have an extensive procedural history. Recently, in a May 2018 decision, the Board denied the claims on appeal and the Veteran appealed those denials to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2019 Memorandum Decision, the Court set aside the Board’s decision denying a higher initial rating for insomnia and entitlement to a TDIU, and remanded both issues back to the Board for readjudication, to include consideration of a separate service connection claim for major depressive disorder. When the matter returned to the Board, the Board remanded it for further development in October 2019. Those issues are now again before the Board. In May 2020, while the appeal was on remand, the RO granted a 70 percent rating for the service-connected insomnia, effective March 2, 2020. Despite the partial grant, the claim remained pending in the legacy appeals system as part of the original appeal. In June 2020, the Veteran filed VA Form 20-0996 and requested a Higher Level Review of several issues, including the increased rating grant. VA notified him via letter in June 2020 that his claim was already on appeal and the form could not be accepted. Thus, entitlement to an initial rating higher than 30 percent prior to March 2, 2020 and higher than 70 percent thereafter is currently before the Board under the legacy appeals system. The issue of service connection for sleep apnea is on appeal from a March 2017 rating decision. The Board denied the claim in a March 2019 decision, which the Veteran appealed to the Court. In May 2020, the Court set aside the denial in a Memorandum Decision and remanded the matter to the Board for readjudication consistent with the Memorandum Decision. The appeal was merged with the other three issues and is now before the Board following the Court’s May 2020 Memorandum Decision. The Board finds that a remand is necessary for compliance with the October 2019 Board remand instructions and to obtain outstanding, relevant private treatment records. In its October 2019 remand, the Board instructed that the Veteran be afforded a VA psychiatric examination. The Board also instructed the VA examiner to render secondary service connection opinions and an opinion on the functional impact cause by the Veteran’s psychiatric disorder(s). The examiner, however, did not opine on the service-connected insomnia’s functional impact and provided contradictory nexus opinions regarding the major depressive disorder. Specifically, in March 2020, the examiner concluded that the major depressive disorder was at least as likely as not aggravated by his service-connected medical conditions. In an April 2020 addendum opinion, however, the same examiner opined that there was insufficient clinical documentation to support that the Veteran’s service-connected disabilities caused or aggravated his major depressive disorder. She also noted that the Goldsboro psychiatric report “was not accepted by VA as it was performed on a direct basis.” Because the examiner issued contradictory opinions without sufficient explanation and did not clearly explain why she could not consider the Goldsboro report, a remand is necessary for adequate opinions. Furthermore, the Veteran authorized VA to obtain outstanding private psychiatric treatment records from Dr. U in January 2020 and again in June 2020. While the RO made appropriate attempts to obtain these records previously, because the claim is being remanded, the Veteran is pro se, and there may have been difficulty obtaining records due to the global COVID-19 pandemic, the Board finds that additional attempts to obtain the outstanding records should be made. The Veteran is advised that he is ultimately responsible for obtaining private treatment records and should contact his private provider to ensure that they respond to VA’s request. In the alternative, the Veteran can obtain the records himself and submit them to VA. Because earlier private treatment records contained relevant information regarding his sleep apnea claim, the outstanding records may be relevant to his claim and it must be remanded as inextricably-intertwined. Finally, the claim of entitlement to a TDIU is inextricably-intertwined with all remanded claims and must be remanded as well. The matters are REMANDED for the following action: 1. Ask the Veteran to complete another VA Form 21-4142 for Dr. U at Solay Counseling only if the June 2020 form has expired. Make two requests for the authorized records from Dr. U unless it is clear after the first request that a second request would be futile. Notify the Veteran if the records cannot be obtained. 2. Only after completing instruction number one, forward the claims file to the March 2020 examiner, or another appropriate VA examiner if she is unavailable, for an addendum medical opinion regarding the Veteran’s insomnia and major depressive disorder. An in-person examination is unnecessary unless otherwise determined by the examiner. After a review of the claims file, the examiner must respond to the following: (a.) Is it as likely as not that the major depressive disorder was caused by any of the Veteran’s service-connected disabilities, particularly his skin and insomnia disabilities? (b.) If the answer to the foregoing question is NO, then is it as likely as not that the major depressive disorder has been aggravated by any of his service-connected disabilities, particularly his skin and insomnia disabilities? (c.) If the answer to both foregoing questions is NO, then please discuss which symptoms and impairments are attributable to the service-connected insomnia disorder and which are attributable to the nonservice-connected major depressive disorder, if possible. (d.) Finally, please comment on the functional impact on the Veteran’s ability to work attributable to the service-connected insomnia disorder. If and only if the examiner concludes the major depressive disorder was caused or aggravated by a service-connected condition, then the examiner should also comment as to the functional impact on the Veteran’s ability to work attributable to that condition as well. A complete rationale for all opinions rendered is required. If the medical professional is unable to provide any required opinion, he or she should explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, 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.