Citation Nr: 21062420 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 13-09 080A DATE: October 7, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include a nervous disorder diagnosed as major vascular neurocognitive disorder, secondary to service-connected sinusitis. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include a nervous disorder diagnosed as major vascular neurocognitive disorder, secondary to service-connected sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1951 to October 1954. This appeal to the Board of Veterans' Appeals (Board) stems from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 decision, the Board of Veterans' Appeals (Board), in relevant part, reopened the Veteran's service connection claim for a nervous condition (an acquired psychiatric disorder) and denied the Veteran's service connection for an acquired psychiatric disorder on the merits. The Veteran timely appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, pursuant to a Joint Motion for Partial Remand (JMPR) submitted by the parties, the Court vacated and remanded the portion of the Board decision which denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. See July 27, 2020 CAVC Order. The Court noted that the Board's award of reopening of service connection for an acquired psychiatric disorder should not be disturbed as it is favorable to the Veteran. Id. at pg. 2. In the July 2020 JMPR, the parties agreed that the Board failed to determine whether an August 1979 submission by the Veteran was an informal claim that the RO failed to adjudicate. This August 1979 submission asserted that the Veteran's acquired psychiatric disorder (nervous condition) was secondary to his service-connected sinusitis, potentially raising new theory of entitlement. See July 2020 JMPR, pgs. 2-4. The Court dismissed the remaining issues, including direct service connection for an acquired psychiatric disorder, to include PTSD, as the Veteran did not appeal these issues. Id. at pgs. 1-2. As will discussed below, this matter was remanded by the Board in November 2020 and June 2021 for further development. It has returned to the Board for further appellate review. Based on a review of the record, the Board finds that further development is required. The Board has recharacterized the Veteran's psychiatric claim as reflected on the title page to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include a nervous disorder diagnosed as major vascular neurocognitive disorder, secondary to service-connected sinusitis. The Veteran has asserted that his sinusitis condition has caused or aggravated his nervous disorder, with headaches. See August 4, 1979 Statement in Support of Claim. The Veteran has been afforded VA examinations to determine the nature and etiology of his psychiatric disabilities in May 2016, December 2020 and June 2021. In its November 2020 Remand, the Board found that the Veteran raised a new theory of entitlement that had not been adjudicated by the RO based on secondary service connection. See August 4, 1979 Statement in Support of Claim. As such, the Veteran's claim was remanded for further development, to include affording the Veteran a VA examination to address this new theory of entitlement. The Board found that the previous May 2016 examination did not address secondary service connection. In its June 2021 Remand, the Board found the December 2020 Mental Disorder examination was insufficient to resolve the Veteran's claim based on medical records showing an assessment of depression in January 2001, VA treatment records showing symptoms of diagnosed dysthymic disorder in 1984 and the examiner's failure to consider any degree of aggravation that has occurred since the onset of the Veteran's psychiatric condition. See e.g., January 22, 2001 treatment record re: diagnosis of depression; November 15, 1984, treatment record re: dysthymic disorder (I), Ambulatory/Outpatient Care Summary. The June 2021 examiner had determined that the Veteran did not seek any psychiatric treatment until 2002. Pursuant to the Board's June 2021 remand, the Veteran was afforded an additional VA medical opinion that same month regarding the nature and etiology of his acquired psychiatric disability. Based on a review of this examination report, the Board finds that the June 2021 medical opinion does not fully address the Veteran's theory of entitlement on a secondary basis with respect to aggravation. When the Board remands an appeal, the Veteran has a right to compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this June 2021 Medical Opinion, the examiner found a negative linkage opinion to service and found that the Veteran's acquired psychiatric disorder (nervous disorder) was not aggravated by a service-connected disability, namely his service-connected sinusitis and rhinitis. In its rationale, the examiner explained, in pertinent part, that the Veteran's service-connected physical conditions preceded the Veteran's psychiatric condition, therefore the Veteran's neuropsychiatric condition could not be aggravated by the service-connected physical conditions. The sinusitis and rhinitis precede both the mental disorder condition, for 28 years. There is no worsened or aggravation nexus of causality. See June 24, 2021 Medical Opinion, pgs. 3-4. First, the Board notes that with respect to aggravation, it is largely irrelevant that the Veteran's service-connected physical conditions (chronic rhinitis, sinusitis) preceded the onset of his Veteran's neuropsychiatric condition. The fundamental issue in this case is whether the Veteran's non-service-connected disability was caused or aggravated (increased in severity) by his service-connected sinusitis and/or rhinitis. Here, the examiner did not address whether any aggravation (increase in severity) has occurred since the onset of the Veteran's neuropsychiatric condition. Second, the examiner's rationale is conclusory with respect to aggravation. The examiner determined that there is no worsened or aggravation of a nexus of causality, without any reference to specific data points or pertinent evidence of record to support this conclusion. The Board also notes that the Court of Appeals for Veterans Claims decision has held that aggravation under 38C.F.R. §3.310 (b) does not require that there be "permanent" worsening of the nonservice-connected disability. Any increase in disability is sufficient. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds that the Veteran should be afforded an additional medical opinion to fully address the Veteran's theory of entitlement to service connection for an acquired psychiatric disorder on a secondary basis, specifically with respect to causation and aggravation. Accordingly, this matter is REMANDED for the following action. 1. Obtain any outstanding VA or private treatment records and associate them with the claims file. 2. Obtain an addendum VA medical opinion from a VA physician other than the one who drafted the December 2020 and June 2021 opinions, to assess the nature and etiology of the Veteran's acquired psychiatric disorder. A full VA examination (or telehealth appointment) should not be scheduled unless it is deemed necessary by the new examiner. The examiner must review the Veteran's claims file in its entirety, to include a copy of this REMAND, the November 2020 and June 2021 REMAND, and the July 2020 Court Order and Joint Motion for Partial Remand. The completion of this review must be noted in the report. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any acquired psychiatric disorder, to include dysthymic disorder, depression, nervous disorder, diagnosed as major vascular neurocognitive disorder, was caused or aggravated by the Veteran's service-connected sinusitis and/or rhinitis. For purposes of this question, the examiner is invited to review the Veteran's August 4, 1979 Statement in Support of Claim. (Document type, Translation Related, Receipt Date, October 31, 2018.) The examiner is asked to consider all written and verbal statements from the Veteran regarding his history of symptoms. Note: If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to the service-connected sinusitis. The examiner must remain mindful that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). A complete and detailed rationale should accompany each opinion provided. 3. Following completion of the above, the RO must ensure that the VA examination reports are adequate. If the VA examination report is deficient in any manner, then return the report to the examiner as inadequate. 4. After completing the directives above, and any other appropriate development deemed necessary, adjudicate the issue on appeal on the basis of the additional evidence. If the determination remains adverse to the Veteran, he and his representative must be furnished with a Supplemental Statement of the Case (SSOC). An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, Associate 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.