Citation Nr: 21062355 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 14-03 078 DATE: October 7, 2021 REMANDED Entitlement to compensation for a disability manifested by shortness of breath (dyspnea) under the provisions of 38U.S.C.§1151 due to medical treatment received at the VA Medical Center (VAMC) in Hartford, New Hampshire, is remanded. Entitlement to an increased evaluation for service-connected panic disorder with depression, not otherwise specified (NOS), and without agoraphobia (hereinafter, service-connected psychiatric disabilities), currently evaluated 30 percent disabling prior to November 3, 2015, and 50 percent disabling, thereafter, is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1965 to June 1969. He also had subsequent service of an unverified nature in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) from August 2007, September 2009, and April 2013 rating decisions by Department of Veterans Affairs (VA) Regional Offices (ROs) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In April 2015, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the April 2015 hearing is associated with the file. The Veteran's appealed issues, among others, were previously before the Board in August 2015, September 2018, and August 2018, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to an increased evaluation for the Veteran's service-connected psychiatric disabilities, currently evaluated 30 percent disabling prior to November 3, 2015, and 50 percent disabling, thereafter, is remanded. 2. Entitlement to a TDIU is remanded. While further delay in readjudicating the Veteran's appealed issue is regrettable, the Board concludes that another remand is necessary in order to ensure that VA fulfills its duty to assist the Veteran in substantiating his appeal. In August 1995, the Social Security Administration (SSA) contacted the Veterans Health Administration (VHA) to request copies of all VA treatment records pertinent to the Veteran in connection with a claim for disability benefits that he filed with that Administration. Later that month, the State of Vermont requested the same information from VHA for the same purpose. The file also reflects several pieces of correspondence dated from June 1996 to August 1996 between a VA physician and a private attorney representing the Veteran in his claim or appeal for disability benefits from the SSA. It is unclear whether the Veteran's claim or appeal for SSA disability benefits that he sought in the mid-1990 was fruitful; however, the Veteran's electronic VA file reflects that he began receiving SSA benefits. Despite the above evidence, the AOJ has not attempted to obtain information from the SSA regarding this claim or appeal, to include a copy of all decisions rendered and the medical evidence upon which was based. Under 38 U.S.C. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. As these records are pertinent to all of the issues on appeal, efforts to obtain and associate them with the record must be undertaken. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Additionally, the Board concludes that further actions are necessary prior to readjudication of the Veteran's appeal seeking a TDIU. Specifically, both of these appealed issues involve whether one or more of the Veteran's service-connected disabilities rendered him unable to sustain a substantially gainful occupation. To this point, the Board notes that the Veteran's occupational background is unclear. Specifically, while the Veteran has reported that he has been a self-employed logging contractor, an employee of the Planning Commission of the town of Brighton, Vermont, and an employee of a private logging company during the pendency of the appeal, he has inconsistently reported his earned income and the dates that each occupation commenced and ceased. This information is critical for readjudication of the appeal seeking a TDIU as per the criteria of 38 C.F.R. § 4.16. In light of above, the Board concludes that the AOJ must undertake additional develop to verify the Veteran's complete occupational history and his income throughout the appeal period. 3. Entitlement to compensation for a disability manifested by shortness of breath (dyspnea) under the provisions of 38U.S.C.§1151 due to medical treatment received at the VA Medical Center in Hartford, New Hampshire, is remanded. In addition to the actions discussed above, the Board concludes that this appealed issue must be remanded to ensure the adequacy of the medical opinions necessary to readjudicate such. Specifically, while the VA medical professional who provided the August 2020 opinion determined that the Veteran did not incur an additional disability, to include shortness of breath (dyspnea), due to VA treatment, such a conclusion is incongruent with the fact that the Veteran's prescription of adalimumab (Humira) was discontinued in December 2009 due to increased respiratory symptoms. This inconsistent medical evidence must be reconciled on remand. Due to the complex medical picture presented in this case and the unfruitful results of the Board's prior remands, the Board concludes that advisory opinions from an independent medical expert is necessary under 38 U.S.C. § 5109(a) and 38 C.F.R. § 3.328. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, the AOJ must obtain and associate with the file any decision and award letters concerning disability benefits from the Social Security Administration (SSA), to include the medical records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 3. The AOJ must provide the Veteran with a VA Form 8940 and request that he identify all occupations (substantially gainful or not) in which he has participated in during the pendency of his appeal. Each occupation must be accompanied by approximate dates of commencement and cessation. *The Veteran is encouraged to cooperate with VA's efforts in obtaining and verifying this information, as his failure to do so may result in the denial of his appeal. 4. Thereafter, pursuant to 38 U.S.C. § 5109(a), the AOJ must obtain advisory medical opinions from an independent medical expert who specializes in Pulmonology. After the clinician reviews the complete file, he/she is requested to address the following: a. Did the Veteran incur an additional respiratory disability, to include but not limited to asthma, chronic bronchitis, bronchospasm, and/or dyspnea caused by the prescription of adalimumab (Humira)? * In addressing the above, the clinician is asked to discuss the Veteran's complete medical history as it relates to all noted respiratory symptoms and disabilities and the opinions of the prior VA clinicians. b. For each disability identified in part (a), provide an opinion concerning whether it is at least as likely as not that such is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of a VA provider administering treatment? c. If the response to part (b) is negative, provide an opinion concerning whether each disability identified in part (a) was at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered respiratory disabilities or symptoms to be ordinary risks of adalimumab (Humira) at the time such was prescribed by VA. The clinician should provide a complete rationale for all opinions rendered. The clinician should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the clinician finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 5. Thereafter, the AOJ must readjudicate the Veteran's appealed issues seeking an increased evaluation for his psychiatric disabilities and for VA compensation for a disability manifested by shortness of breath (dyspnea) under the provisions of 38U.S.C.§1151. If any benefit sought is not granted to the fullest extent, the Veteran and his representative must be provided a copy of the readjudication and afforded an appropriate opportunity to respond. 6. Thereafter, the AOJ must undertake any development necessary to readjudicate the Veteran's appeal seeking a TDIU, to include verifying his annual income throughout the entirety of the appeal period (from May 2006 to the present) and the dates of commencement and cessation of each occupation in which the Veteran participated during the period. These efforts also include all necessary development to determine whether any of the Veteran's occupations is/are found to have been "marginal" or completed in a sheltered work environment," under the controlling statutes, regulations, and case law. 7. Thereafter, the AOJ must readjudicate the Veteran's appealed issue seeking a TDIU. If the benefit sought is not granted to the fullest extent, the Veteran and his representative must be provided a copy of the readjudication and afforded an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.