Citation Nr: 21067687 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-35 363A DATE: November 5, 2021 ORDER The appeal as to the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is dismissed. The appeal as to the claim of entitlement to service connection for a left eye disorder, other than central retinal artery occlusion, to include as secondary to a service-connected disability, is dismissed. REMANDED The appeal as to the claim of entitlement to service connection for transient cerebral ischemia (TIA), to include as secondary to the service-connected coronary artery disease (CAD), The appeal as to the claim of entitlement to service connection for carotid artery disease, to include as secondary to the service-connected CAD, The appeal as to the claim of entitlement to service connection for left-side neck scar, to include as secondary to carotid artery surgery, FINDINGS OF FACT 1. While in remand status, an August 2021 rating decision granted entitlement to service connection for PTSD. 2. While in remand status, an August 2021 rating decision granted entitlement to service connection for a left eye disorder, other than central retinal artery occlusion. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for PTSD has been granted, there remains no case or controversy as to the issue of entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2020). 2. As the benefit sought on appeal with respect to the matter of service connection for a left eye disorder, other than central retinal artery occlusion has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a left eye disorder, other than central retinal artery occlusion. 38 U.S.C. §§ 1110, 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from June 1965 to April 1969. His tenure of service included a period of service in the Republic of Vietnam. His service was under honorable conditions. Among other commendations, the Veteran was awarded the Presidential Unit Citation, Vietnam Campaign Medal, and the Vietnam Service Medal. The Veteran passed away in April 2015. His surviving spouse is the appellant. These matters are on appeal from a February 2015 rating decision. In February 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The matter was previously before the Board in June 2021. The claim has been returned to the Board for further appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD. See argument Below at 2 2. Entitlement to service connection for a left eye disorder, other than central retinal artery occlusion, to include as secondary to a service-connected disability. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, an August 2021 rating decision granted the Veteran's claim of entitlement to service connection for PTSD and a left eye disorder other than central retinal artery occlusion. This action resolved the claim for service connection. As a result, no case or controversy regarding the matter of service connection for PTSD or a left eye disorder remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to the matters, and the matters are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for TIA to include as secondary to the service-connected coronary artery disease CAD. See argument Below at 2 2. Entitlement to service connection for carotid artery disease, to include as secondary to the service-connected CAD. When the Board last reviewed the claim June 2021, it found that a remand was necessary to obtain VA addendum medical opinions for the issues of entitlement to service connection for TIA and carotid artery disease, as the VA and private opinions of record were inadequate to adjudicate the claim. Specifically, in multiple VA opinions, the examiner acknowledged that atherosclerosis shares common contributory factors or pathophysiology as coronary artery disease and carotid artery disease; however, they found that atherosclerosis does not directly cause vascular disease. In contrast, multiple private opinions indicate that atherosclerosis is a factor that establishes a link to the Veteran's cardiovascular conditions and his carotid artery conditions. Specifically, it was noted that atherosclerosis is a diffuse process throughout the body, it is not specific to any organ system. Thus, the same progression that increased the risk or progression of CAD also has the same effect on the progression of carotid artery disease. The Board found that the aforementioned VA and private examiners addressed causation; however, their opinions conflicted, so a clarification opinion was requested. In addition, the Board found that the examiners did not address the question of whether the current TIA and carotid artery disease were aggravated by the Veteran's service-connected CAD. In this regard, in a July 2021 opinion, a VA examiner indicated that he reviewed the conflicting medical evidence, and found that the current TIA and carotid artery disease were not caused by the service-connected CAD. In providing the opinion, the examiner noted that TIA and carotid artery disease are vascular in origin and caused by the same risk factors, such as hyperlipidemia, hypertension tobacco use, and family history of CAD; however, the examiner concluded that having one disease increases the risk of developing the other disease based on risk factors, but not based on a diagnosis of the originating disease. The Board finds the July 2021 opinion inadequate to adjudicate the claim, as the examiner did not provide a sufficient rationale for his finding that TIA and carotid artery disease were not caused by the service-connected CAD. In addition, the examiner did not provide an opinion addressing whether the current TIA or carotid artery disease were aggravated by the Veteran's service-connected CAD. Accordingly, the issues must be remanded for adequate VA medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to service connection for a left-side neck scar, to include as secondary to carotid artery surgery. Finally, the issue of entitlement to service connection for left-side neck scar, to include as secondary to carotid artery surgery cannot be addressed until the above development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the appellant's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the TIA disorder present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current TIA disorder, is etiologically related to the Veteran's active service. If not, is it at least as likely as not (i.e., at least 50 percent probable) that the current TIA disorder was caused or permanently worsened by the service-connected coronary artery disease disability. If the physician believes that a TIA disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing the opinion, the examiner must discuss the contemporaneous private treatment records, that note diagnoses TIA. The examiner must also address the VA and private conflicting medical opinions of record. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the carotid artery disease present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current carotid artery disease, is etiologically related to the Veteran's active service. If not, is it at least as likely as not (i.e., at least 50 percent probable) that the current carotid artery disease was caused or permanently worsened by the service-connected coronary artery disease disability. If the physician believes that a carotid artery disease was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing the opinion, the examiner must discuss the contemporaneous private treatment records, that note diagnoses carotid artery disease. The examiner must also address the conflicting VA and private medical opinions of record. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page) 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided a Supplemental Statement of the Case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.