Citation Nr: 21066062 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 11-14 818 DATE: October 28, 2021 REMANDED Entitlement to service connection for a headache condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1999 to May 1999. These matters were last before the Board in April 2019, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an August 2021 supplemental statement of the case, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a September 2018 videoconference hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for a headache condition is remanded. The Board in its April 2019 remand instructed the AOJ to afford the Veteran an examination to evaluate the nature and likely etiology of the claimed headache condition. Specifically, the Board instructed the chosen VA examiner to set forth an opinion as to the likelihood that the headache condition was secondary to the service-connected tinnitus, to include discussion of whether tinnitus aggravated the headache condition. In the resulting August 2021 opinion, the examiner found that it was less likely than not that the Veteran's headache condition was secondary to the service-connected tinnitus, and further commented that the headache condition was not permanently aggravated beyond its natural progression by the tinnitus. In support thereof, the examiner stated that "[f]or a condition to be aggravated by a service-connected condition, there must be a baseline measurement...and there must be clear evidence that it is aggravated by a service-connected condition." See August 2021 Medical Opinion Disability Benefits Questionnaire. The examiner noted that there was no such baseline measurement of headache severity and no evidence that the headache condition was aggravated by the tinnitus. The Board cannot rely on this opinion as the examiner applied the wrong standard of evaluation. As a reminder, secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To that end, service connection on a secondary basis can be granted for both causation as well as aggravation. Aggravation includes any increase in the severity of the disability, not the more stringent standard of "permanently aggravated beyond its normal progression" utilized by the April 2019 examiner. 38 C.F.R. § 3.310(b). Furthermore, the examiner also applied language implying that there was a necessary predicate factor of establishing a baseline severity for the headache condition and demonstrating that the severity had been worsened due to the impact of the service-connected tinnitus. Again, the Board must highlight that this is an inappropriate standard with no basis in the applicable regulations. Accordingly, remand is necessary in order to secure an opinion that is responsive to the Board's prior April 2019 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board in April 2019 remanded the issue of entitlement to service connection for an acquired psychiatric disorder in order to secure an addendum opinion regarding the likely etiology of the claimed acquired psychiatric disorder. Specifically, the Board noted that in a prior VA examination dated in July 2010 a VA examiner provided a negative etiology opinion on the grounds that the Veteran had a preexisting psychiatric disorder. However, that examiner did not address whether the purportedly preexisting psychiatric disorder was aggravated by service. Furthermore, the Board noted that the prior July 2010 VA opinion did not address whether the claimed psychiatric disorder was secondary to a service-connected disability, namely, tinnitus. Therefore, the Board requested that the Veteran be provided a new opinion that addressed both of these theories of potential entitlement. In summation, the Board remand requested that the AOJ secure an opinion from a VA examiner to evaluate whether the Veteran clearly and unmistakably had a pre-existing acquired psychiatric disorder at the time of his entrance into service. If so, an opinion was needed as to whether that preexisting acquired psychiatric disorder clearly and unmistakably was NOT aggravated permanently by his service. In addition, regardless of whether the clear and unmistakable standard had been met in order to establish that the Veteran's acquired psychiatric disorder did preexist service, the chosen examiner was asked to separately opine both as to whether it was at least as likely as not that the psychiatric disorder was incurred in or otherwise attributable to service and as to whether it was at least as likely as not that the psychiatric disorder was secondary to a service-connected disability. In an April 2021 opinion, a VA examiner found that the Veteran "likely" had a preexisting psychiatric disorder based on post-service medical records as well as the Veteran's own self-reporting that he exhibited behavioral issues before he joined the service. See April 2021 Medical Opinion Disability Benefits Questionnaire. The examiner denied service connection on a direct basis due to this finding. As for the alternative theory of entitlement to service connection for an acquired psychiatric disorder as a preexisting condition, the examiner found it less likely than not that the psychiatric disorder, which clearly and unmistakably existed prior to service, was also clearly and unmistakably aggravated permanently by service. In support thereof, the examiner relied on the lack of available in-service records documenting treatment for psychiatric symptomatology. The Board must remand this matter to secure another etiology opinion that is responsive to the queries it has already set forth, as the April 2021 opinion is deficient. To begin, the VA examiner did not offer any rationale regarding direct service connection other than to discuss the finding that the Veteran had a preexisting psychiatric disorder. Furthermore, while the examiner did utilize the correct standard in evaluating whether the Veteran's psychiatric disorder preexisted service, namely, the clear and unmistakable standard, the examiner's rationale is not sufficient as he did not reconcile his conclusion that the psychiatric disorder preexisted service with the clear lack of evidence of a diagnosis of the condition upon the Veteran's entrance into service. As a reminder, every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The examiner cannot satisfy this standard without a thorough rationale to explain why no psychiatric disorder was noted on the July 1998 examination administered to the Veteran prior to his entrance into service. In addition, the Board finds fault with the April 2021 examiner's opinion regarding the likelihood that the psychiatric disorder was secondary to tinnitus. Specifically, the examiner stated that the psychiatric disorder "was clearly and unmistakably not aggravated beyond its natural progression" by tinnitus. Id. As stated above, this is not the correct standard to apply when considering secondary service connection. The likelihood of aggravation in particular includes any increase in the severity of the disability. As such, the Board requests that the AOJ secure a new opinion that considers the likelihood of secondary service connection and which utilizes the appropriate, less stringent standard. On remand, the chosen examiner must sufficiently address direct service connection and secondary service connection as well as the question of whether the Veteran had a preexisting psychiatric disorder and whether any such preexisting condition was permanently aggravated by service. Each conclusion must be supported by a thorough rationale. Stegall, supra. The matters are REMANDED for the following action: 1. Provide the claims file to the August 2021 VA examiner, or to another qualified medical professional if she is not available, in order to elicit an opinion as to the likely etiology of the claimed headache condition. The entire claims file, including this REMAND, must be made available to the chosen examiner, and that individual must indicate that they reviewed the claims file in full prior to setting forth any opinion or opinions. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran has a headache condition that is aggravated by service-connected tinnitus. When setting forth this opinion, the examiner should ensure that they apply the proper standard of evaluation. Specifically, the standard for secondary aggravation is any increase in disability, as opposed to the standard of "beyond the natural progression" as noted on the examination form itself. If the opinion is that the service-connected tinnitus aggravated the claimed headache condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All opinions must be supported by a detailed rationale. 2. Provide the claims file to the April 2021 VA mental health examiner, or to another qualified VA medical professional if he is not available, in order to secure an addendum opinion as to the likely etiology of the claimed acquired psychiatric disorder. The claims file must be reviewed by the examiner, and the examiner must note that they have reviewed the claims file prior to issuing any opinion. The examiner is asked to provide an opinion as to whether any diagnosed acquired psychiatric disorder clearly and unmistakably preexisted service, and clearly and unmistakably did NOT worsen beyond natural progression during service. The examiner is asked to specifically address the lack of a diagnosis of any acquired psychiatric disorder on the July 1998 examination administered prior to the Veteran's entrance to service. Regardless of whether there is this required clear and unmistakable evidence to satisfy this two-prong analysis, consider whether it is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's acquired psychiatric disorder is causally related to service. Specifically, when opining as to direct service connection, the examiner should operate on the assumption that there was no preexisting psychiatric disorder. Furthermore, the examiner is also requested to review the record and offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the diagnosed acquired psychiatric disorder was aggravated by the service-connected tinnitus. When setting forth this opinion, the examiner should ensure that they apply the proper standard of evaluation. Specifically, the standard for secondary aggravation is any increase in disability, as opposed to the standard of "beyond the natural progression" as noted on the examination form itself. If the opinion is that the service-connected tinnitus aggravated the acquired psychiatric disorder, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.