Citation Nr: 21067689 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 07-25 610 DATE: November 5, 2021 ORDER Service connection for a migraine headache disability is denied. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. Service connection for a memory loss disability is denied. Service connection for a substance abuse disability is denied. REMANDED Compensation under 38 U.S.C. § 1151 for additional disability as the result of VA medical and surgical treatment is remanded. Before December 21, 2017, a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A migraine headache disability did not originate in service or for years thereafter, and the weight of the evidence is otherwise against a finding that a migraine headache disability is etiologically related to service. 2. An acquired psychiatric disability did not originate in service or for years thereafter, and the weight of the evidence is otherwise against a finding that an acquired psychiatric disability, to include PTSD, is etiologically related to service. 3. A memory loss disability did not originate in service or for years thereafter, and the weight of the evidence is otherwise against a finding that a memory loss disability is etiologically related to service. 4. The weight of the evidence is against a finding that a substance abuse disability was caused or aggravated by a service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a migraine headache disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 2. The criteria for service connection for an acquired psychiatric disability, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 4.127. 3. The criteria for service connection for a memory loss disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. 4. The criteria for service connection for a substance abuse disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to March 1969, including service in the Republic of Vietnam (Vietnam) during the Vietnam War. A July 2006 rating decision of the Agency of Original Jurisdiction (AOJ) reopened the Veteran's claim for service connection for PTSD and denied the claim on the merits. The Veteran appealed this determination to the Board of Veterans' Appeals (Board), which, in March 2009, reopened and denied the Veteran's claim for service connection on the merits. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which, pursuant to an August 2009 Joint Motion for Remand (August 2009 Joint Motion), vacated the Board's March 2009 denial of service connection for PTSD. In July 2010, the Board remanded the Veteran's claim pursuant to the August 2009 Joint Motion. In June 2017, the Board remanded the Veteran's claim for service connection for an acquired psychiatric disability. An April 2007 rating decision of the AOJ denied the Veteran's claim for compensation under 38 U.S.C. § 1151 for additional disability of the right fifth finger, right arm, and right wrist as the result of VA medical or surgical treatment. A November 2007 rating decision of the AOJ declined to reopen a claim for service connection for migraine headaches, and it denied service connection for a substance abuse disability and memory loss. In June 2017, the Board reopened the claim for service connection for migraine headaches and remanded the matter for further development. The Board additionally remanded the issues of service connection for a substance abuse disability and memory loss. The Veteran participated in a videoconference hearing before the undersigned in April 2016, and a transcript of this hearing has been associated with the record. This matter was most recently before the Board in May 2021, when it remanded the Veteran's claims in order to further develop the medical evidence addressing the etiology of the Veteran's claims. The Board finds that the AOJ has substantially complied with its May 2021 remand directives, and it will proceed to a decision. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C. §§1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may additionally be established based on a continuity of symptomatology for certain chronic diseases, including headaches (to the extent that such are an organic disease of the nervous system). See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These disabilities are presumed to be service connected if manifested to a compensable degree within one year after separation from active duty. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service Connection for Migraine Headaches The Veteran sought treatment during service for headache pain. For example, in June 1966, the Veteran was assessed with tension headaches. The Veteran additionally sought treatment for headache pain in August 1968 and October 1968. The Veteran's March 1969 separation examination showed, however, that the Veteran's head, vascular system, and neurological system were all normal. Following the Veteran's separation from service, the Veteran has sought treatment for headache pain on a number of occasions. For example, in April 1998, the Veteran stated that his migraine headaches had subsided, but he still experienced occasional tension headaches. In May 1998, a clinician diagnosed the Veteran with cluster or migraine headaches following the Veteran complaints of a 10 to 12-year history of migraine headache pain. In July 1998, a clinician noted that the Veteran's headache symptoms had improved. The Veteran sought treatment for headache pain in September 1998, and stated that he "used to get migraine headaches". In September 2001, a clinician noted the Veteran's "long history of migraine headaches". The Veteran underwent a VA examination in October 2019, at which time the examiner diagnosed the Veteran with a migraine headache disability. The examiner offered two opinions regarding the etiology of the Veteran's migraine headache disability. The examiner opined that it was less likely than not that the Veteran's migraines were related to service. As a rationale for this opinion, the examiner noted that the Veteran experienced an in-service incident of a tension headache in June 1966, and no further treatment for migraine headaches until 2003. With that said, the examiner additionally opined that it was at least as likely as not that the Veteran's headaches were related to service. As a rationale for this opinion, the examiner considered the Veteran's account that he had experienced migraine headaches for approximately 20 years. The examiner then noted that the Veteran's June 1966 treatment for a tension headache was consistent with a finding that his current headache disability was related to service. The AOJ requested a clarifying opinion, noting the apparently conflicting etiological opinions of the October 2019 examiner, with one opinion addressing headaches and another addressing migraines. In November 2019, a different VA examiner opined that it was less likely than not that the Veteran's migraine headache disability was related to service. As a rationale for this opinion, the examiner noted that the Veteran was diagnosed with tension headaches on one occasion during service, with no ongoing complaints, diagnoses, or treatment. Following service, the Veteran first received treatment for migraine headaches in 1998, which was 29 years after his separation from service. Upon review of this evidence, in May 2021, the Board found the October 2019 and November 2019 opinions to be inadequate because they relied, in part, on findings that the Veteran complained of headache symptoms on only one occasion during service, when, in fact, he sought treatment for headache pain on at least three occasions during service. The Board remanded the Veteran's claim in order to obtain an additional opinion addressing the etiology of the Veteran's migraine headache disability. The Veteran underwent an additional VA examination in July 2021, at which time the examiner diagnosed the Veteran with a migraine headache disability. The examiner opined that it was less likely than not that the Veteran's migraine headache disability was related to his active duty service. As a rationale for this opinion, the examiner considered the Veteran's report that he began experiencing migraine headaches in 2003. The examiner further noted the Veteran's June 1966, August 1968, and October 1968, in-service treatment for headaches. The examiner found the Veteran's in-service complaints of headache pain to be acute in nature, and unrelated to the Veteran's migraine headaches for which he began receiving treatment in 1998. The examiner found the Veteran's complaints of pain to be subjective in nature, and the examiner observed no evidence of a chronicity of care for headache symptoms. In addition to the medical evidence, the Board has considered the Veteran's lay contentions regarding the nature and history of his headache pain. For example, during his April 2016 hearing before the undersigned, the Veteran described experiencing headaches on several occasions during service and frequently following his separation from service. Turning to an analysis of these facts, the Veteran received in-service treatment for headache pain, and he has a current diagnosis with a headache disability. With that said, the Board finds that the weight of the evidence is against a connection between the Veteran's headache disability and his active duty service. In making this determination, the Board places great probative weight on the opinion of the July 2021 examiner that the Veteran's headache disability was less likely than not related to his active duty service. This opinion was offered by a medical professional following a physical examination of the Veteran and consideration of the medical and lay evidence, and the examiner adequately explained the etiological conclusion. To the extent that the Veteran asserts that his headache disability is related to his active service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with examinations based on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily observable symptoms such as headache pain. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The issue of causation of a headache disability, however, is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's headache disability is related to his service, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran's neurological and vascular systems, the internal functioning of which is not readily perceivable by the use of a person's senses. The Board finds additionally that the weight of the evidence is against a finding of a continuity of symptomatology associated with the Veteran's headache disability. The Veteran did not complain of in-service headache pain after October 1968, and his March 1969 separation examination showed that his head, vascular system, and neurological system were all normal. Following his separation from service, the Veteran next sought treatment for headache pain in 1998, which is approximately 29 years later. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has considered the Veteran's assertions that he has experienced symptoms headache pain continuously since his separation from service. With that said, little weight in these contentions given his previous contentions to the contrary when seeking treatment for headache symptoms. For example, in May 1998, the Veteran complained of a 10- to 12-year history of headache pain, suggesting that the Veteran had experienced such symptoms since approximately 1986, which is approximately 17 years following his separation from service. Despite the Veteran's current contentions that he has experienced headache pain continuously since service, the weight of the evidence does not support a finding that the Veteran experienced symptoms of headache pain continuously since service. Presumptive service connection is similarly unwarranted because a headache disability was not shown within one year following the Veteran's separation from service. The weight of the evidence is against granting service connection for a headache disability, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for an Acquired Psychiatric Disability The Veteran claims that he has an acquired psychiatric disability as the result of his in-service experiences. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that the claimed in service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in service stressor. 38 C.F.R. § 3.304(f). If, as in this case, the Veteran's claimed stressor is related to "fear of hostile military or terrorist activity," and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in service stressor. See 38 C.F.R. § 3.304(f)(3). With respect to an in-service stressor, in February 1967, the Veteran was shot in the back as he was walking down the street in Biloxi, Mississippi. Additionally, the Veteran deployed to service in Vietnam in March 1968, where he served as a security policeman at the Bien Hoa Air Base until March 1969. The Veteran claimed, for example in March 2006, that he experienced fear during Vietnamese rocket and mortar attacks. The Veteran additionally alleged that his unit was attacked by Vietnamese forces, and he returned fire while serving on guard duty. The AOJ, in a July 2006 rating decision, conceded that the Veteran's claimed stressors occurred. The Board finds that the Veteran's lay testimony alone establishes the occurrence of the claimed in service stressors, because such stressors involve the fear of hostile military activity and are consistent with the places, types, and circumstances of the Veteran's service. With in-service stressors established, the Board must next determine whether the Veteran has been diagnosed with an acquired psychiatric disability for which service connection may be granted at any time during the appeals period. In this regard, the Board notes that personality disorders are not diseases or injuries for which service connection may be granted. See 38 C.F.R. § 4.127. Service connection may, however, be granted for disability resulting from a mental disorder that is superimposed upon a personality disorder. Id. Turning to the facts in this case, the Veteran has sought mental health treatment on numerous occasions both before and since filing his November 2005 claim for service connection. The Veteran has received numerous psychiatric diagnoses during this time, including a mood disorder (July 2006, October 2019, April 2020), depression secondary to a personality disorder (September 1998), anxiety disorder not otherwise specified (NOS) (April 2007, March 2008, December 2008, January 2009), depressive disorder NOS (April 2007, March 2008, December 2008, January 2009, August 2010, January 2011), alcohol dependence (March 2008, December 2008, January 2009), a history of polysubstance dependence (July 2006), provisional PTSD (October 1998, April 2007, December 2008, January 2009), and PTSD (August 2010, January 2011, October 2019, April 2020). Additionally, clinicians have consistently diagnosed the Veteran with a personality disorder (July 2006, April 2007, March 2008, December 2008, August 2010, January 2011, May 2011, April 2019). The Veteran has received four VA examinations to address the nature and etiology of the Veteran's acquired psychiatric disability. In July 2006, an examiner found that the Veteran did not have a mental disease that limited his social and occupational functioning. To the extent, however, that the Veteran had a diagnosed mood disorder and a history of polysubstance dependence, the examiner found such diagnoses not to be related to service. Instead, the examiner diagnosed the Veteran with a personality disorder not otherwise specified with narcissistic and antisocial features. The examiner found that while certain clinicians had indeed previously assessed the Veteran with PTSD, the medical record generally defined the Veteran "in terms other than [PTSD]". The examiner found that the Veteran's symptoms did not fit the criteria for a diagnosis with PTSD, in part because the Veteran asserted that he "loved his time in Vietnam". Additionally, the examiner did not observe the Veteran to be in "any sort of obvious stress", and the examiner did not observe a link between the Veteran's claimed stressors and his currently claimed symptoms. The examiner noted that the Veteran failed to endorse primary PTSD symptoms until he had been specifically prompted to by the examiner. As a result, the examiner believed that the Veteran had exaggerated his PTSD symptoms. The Veteran's concentration and immediate memory were good. The results of the Veteran's Minnesota Multiphasic Personality Inventory showed "an extremely exaggerated response set", and the examiner was unable to rule out malingering. The Veteran stated that he had "been away from alcohol for about a year and a half", and that his polysubstance dependence ended in the 1980s. In May 2011, an examiner diagnosed the Veteran with recurrent major depressive disorder in partial remission, alcohol dependence in remission, and polysubstance abuse in full sustained remission. The examiner found it to be less likely than not that these symptoms related to the Veteran's military service. As a rationale for this opinion, the examiner noted that the Veteran did not seek mental health treatment during service or soon thereafter. Instead, the evidence suggested that the Veteran only began to seek mental health treatment in the late 1990s. Regardless, the examiner found such diagnoses not to encompass the Veteran's "primary pathology", which was instead his personality disorder with antisocial, narcicisstic, borderline, and paranoid traits. In making this determination, the examiner expressly found the Veteran's symptoms to be inconsistent with a diagnosis with PTSD. Instead, the examiner explained that symptoms such as interpersonal detachment, callousness, and blunting of affect were "hallmarks of an antisocial personality", and his anger problems were similarly consistent with antisocial personality disorder. The examiner opined that the Veteran's substance abuse issues occurred as the result of his personality disorder, and the examiner found it to be less likely than not that the Veteran's substance use disorder related to his active duty service. In April 2018, following a review of the record and examination of the Veteran, an examiner opined that the Veteran had shown only one psychiatric diagnosis throughout the appeal: Other Specified Personality Disorder. The Veteran's symptoms did not meet the diagnostic criteria for any other acquired psychiatric disabilities, to include PTSD. As a rationale for this opinion, the examiner noted that personality disorders were diagnosed based upon evaluation of an individual's long term patterns of functioning, and these personality features must be evident by early adulthood. Consistent with these long term patterns, the examiner noted that the Veteran, throughout his life, had exhibited a repetitive and persistent pattern of misconduct that was violative of the rights of others and age-appropriate societal norms. The examiner noted that by the Veteran's teenage years, he had already shown the characteristics of a personality disorder, and over time, the Veteran had maintained a stable pattern of thoughts, feelings and behaviors consistent with such disorder. Consistent with this observation, the examiner noted that the Veteran had been arrested on several occasions following his separation from service. The Veteran's personality disorder resulted in a pattern of inner experience and behavior that deviated significantly from the expectations of his culture via his poor impulse control, poor interpersonal functioning, affective instability, and misinterpretations of himself and others. The symptoms of the Veteran's personality disorder were pervasive and inflexible, and they manifested in various settings throughout his life which led Veteran to experience significant impairment in his social and occupational interactions. In making this determination, the examiner opined that the Veteran did not meet the diagnostic criteria for depressive disorder, anxiety disorder, PTSD, or any other acquired psychiatric diagnosis. The examiner observed that the Veteran had, in the past, met the criteria for a diagnosis with substance use disorder. The examiner indicated that the Veteran's history of substance use, along with a possible substance induced mood disorder, may have contributed to clinicians' varied diagnostic impressions of the Veteran. In a February 2020 addendum opinion, an examiner, following a review of the Veteran's treatment records, reiterated the April 2018 conclusion that the Veteran failed to meet the diagnostic criteria for any mental health conditions other than a personality disorder. The examiner also noted that the Veteran did not show any significant memory loss at the time of the April 2018 examination. In June 2021, following a review of the record and examination of the Veteran, an examiner opined that the Veteran had shown only one psychiatric diagnosis throughout the appeal: Other Specified Personality Disorder. As a rationale for this opinion, the examiner observed that personality disorders usually began early in life and remained pervasive throughout life. Consistent with this observation, after discussing the Veteran's social and occupational history, the examiner noted that the Veteran "clearly [had] not liked authority since he was a child" and did not want to follow rules even in school, because he "did not feel they were for him". The Veteran indicated that "even as a little child he got in trouble and had anger problems", ultimately threatening to kill his brother. The examiner noted that the Veteran had otherwise had problems with the law throughout his life, resulting in multiple arrests. The examiner indicated that the assessment of the Veteran exclusively with a personality disorder was consistent with the findings of most other clinicians and examiners, who generally found the Veteran to have an unspecified personality disorder with Cluster B traits, antisocial traits, and narcissistic traits. The examiner noted that the Veteran showed no problems with memory, he did not mention depression when he was asked about his emotional problems, and he had difficulty identifying any psychiatric symptoms other than anger and occasional sleep issues. In addition to attributing the Veteran's symptoms exclusively to a personality disorder, the June 2021 examiner explained that the Veteran's symptoms failed to meet several of the PTSD diagnostic criteria at any time during the appeals period. Specifically, the examiner noted that the Veteran's symptoms did not meet Criterion C, or persistent avoidance of stimuli associated with the claimed traumatic event. In making this determination, the examiner noted that the Veteran said "he liked Vietnam and was proud to be there", he "loved his job as a military policeman", he enjoyed watching movies about the Vietnam War, he wished to return to Vietnam, and he enjoying using and collecting guns. As such, the examiner found that the Veteran did not persistently avoid memories of either his in-service gunshot wound or his experiences in Vietnam. The examiner found that the Veteran's symptoms similarly failed to meet Criterion D (negative alterations in cognitions and mood associated with the traumatic event), Criterion E (marked alterations in arousal and reactivity associated with the traumatic event), Criterion F (symptoms lasting for more than one month), and Criterion G (disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning). The examiner concluded that it was less likely than not that the Veteran had a diagnosis with any acquired psychiatric disorder, to include PTSD, as the result of his active duty service. To the extent that the Veteran experienced "bouts" of depression, substance abuse, and anger, such symptoms occurred as a result of his non-service-connected personality disorder. Turning to an analysis of these facts, the weight of the evidence supports a finding that the Veteran's psychiatric symptomsto include his occasional complaints of issues with memory and his substance abuseare solely attributable to a character or personality disorder, which is not a disease or injury for which service connection may be granted. See 38 C.F.R. § 4.127. Furthermore, the weight of the evidence is against a finding that the Veteran has an acquired psychiatric disorder that has been superimposed upon his diagnosed personality disorder. In making these findings, the Board acknowledges the Veteran's extensive history of mental health treatment involves a number of psychiatric diagnoses, including depression, anxiety, and PTSD. With that said, the Board places great probative weight on the findings of the June 2021 examiner that explained, with a full rationale, that the Veteran's only diagnosed psychiatric disability throughout the appeal has been a personality disorder. This opinion was offered by a medical professional following a physical examination of the Veteran and consideration of the medical and lay evidence, and the examiner adequately explained the conclusion, which is consistent with the remainder of the evidence of record. The weight of the evidence supports a finding that the Veteran's sole psychiatric disability is a personality disorder, which is not a disability for which service connection may be granted. The Veteran's claim is denied on this basis alone. Even if, however, the Board were to find that the Veteran had a chronic acquired psychiatric disability other than a personality disorder, the weight of the evidence, including the findings of all examiners, is against a finding that such disability is related to his military service. To the extent that the Veteran asserts that his acquired psychiatric disability is related to his active service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with examinations based on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily observable psychiatric symptoms. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The issue of causation of a psychiatric disability, however, is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's acquired psychiatric disability is related to his service, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by medical professionals and concerned the Veteran's psychiatric symptoms, the functioning of which is not readily perceivable by the use of a person's senses. Further, to the extent that it is claimed that the Veteran has a separate psychiatric disorder characterized by substance abuse, the Board notes that statutes and VA regulations provide that no compensation shall be paid if a disability is the result of a Veteran's own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1 (n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). The law also precludes compensation for primary substance abuse disabilities, and secondary disabilities that result from primary substance abuse. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Thus, in order for service connection to be granted for substance dependence, it must be established as secondary to, or a component of, a service-connected disability. However, the evidence does not reflect, nor does the Veteran claim, that he has substance dependence as a result of a service-connected disability, and a direct service connection theory is legally precluded. As such, service connection for substance abuse must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The weight of the evidence is against granting service connection for an acquired psychiatric disability, to include associated symptoms relating to memory loss and substance abuse, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Compensation Under 38 U.S.C. § 1151 The Veteran contends that he has suffered additional disabilityspecifically the amputation of the right fifth fingeras a result of VA surgical and medical treatment. VA may request an advisory independent medical opinion when warranted by the medical complexity or controversy involved in a pending claim. See 38 C.F.R. § 3.328. VA obtains such opinions from medical experts who are not VA employees at recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made. Id. In this case, in July 2016, the Board, noting the complexity of the medical considerations at issue in this case, requested an independent medical expert opinion to assess whether the Veteran's amputation of the right fifth finger occurred as a result of VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. In March 2017, a private physician provided the requested advisory medical opinion but noted that the Veteran's "primary source records" were unavailable for review. In May 2021, the Board, citing the physician's notation, found that the May 2017 opinion required correction because the physician did not review pertinent medical records. Noting that the assessment of the causation of the Veteran's additional disability involved a complex medical issue, the Board remanded the Veteran's claim to obtain an additional advisory opinion from an independent medical expert. In July 2021, a VA examiner engaged in the general practice of medicine, rather than an independent medical expert, provided the requested opinion. As noted above, the Board's May 2021 remand, noting the complexity of the medical issue involved in this case, explicitly requested an independent medical opinion and not a VA opinion, See 38 C.F.R. § 3.328. No explanation was provided by the AOJ. As such, the Board finds that the AOJ has not substantially complied with its May 2021 remand directives, and it again remands the Veteran's claim in order to obtain an independent medical expert opinion assessing the Veteran's claim for compensation under 38 U.S.C. § 1151. Entitlement to a TDIU Before December 21, 2017 As the Board noted in its May 2021 Remand, the issue of entitlement to a TDIU before December 21, 2017, is inextricably intertwined with the claim for compensation under 38 U.S.C. § 1151. In other words, the resolution of the pending claim for compensation under 38 U.S.C. § 1151 may affect the Veteran's eligibility for a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). This matter is REMANDED for the following action: 1. Obtain an advisory opinion from an independent medical expert, and not from a VA examiner, based a review of the evidence of record as to: 2. Whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault with regard to the Veteran's post 2006 surgical course that led to his right fifth finger amputation. 3. Whether the degree of care was as expected of a reasonable healthcare provider following the repeat surgery performed on December 12, 2006. 4. Whether the amputation was a reasonably foreseeable outcome of the Veteran's December 2006 surgery and was the amputation was an ordinary risk of repeat Dupuytren's surgery that would normally have been discussed as a potential risk pre-operatively. The examiner should provide a summary ot the pertinent evidence of record and reconcile any opinion provided with the opinion included in the March 24, 2017, Board correspondence. 5. After completing the above development and any additional required development, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU before December 21, 2017. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.