Citation Nr: 21068966 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-35 820 DATE: November 17, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for narcolepsy, to include as due to service-connected unspecified depressive disorder, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1984 to June 1985; from July 23, 1992 to July 24, 1992; from March 2003 to February 2004; and from May 14, 2011 to May 15, 2011. The Veteran's personnel records reflect additional periods of service, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), to be confirmed with development ordered herein. These matters come before the Board of Veterans' Appeals (Board) on appeal from two rating decisions, from February 2015 (left knee, TBI, TDIU) and December 2017 (narcolepsy), issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. A transcript is on record. 1. Entitlement to service connection for a left knee disability is remanded. The RO's initial VA examination request noted that the pending VA examination pertains to both the Veteran's knees. In January 2015, the Veteran was provided a VA knee examination; however, the examiner only reviewed the Veteran's right knee. A diagnosis was not provided for the left knee, consistent with the examiner's misunderstanding that "Veteran is filing for right knee condition" only. When VA undertakes to provide a Veteran with a VA examination, it must ensure that it is an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, VA undertook efforts to provide the Veteran a VA examination on his left and right knees; however, only the right knee was examined. Thus, the Veteran must be provided a VA examination on his left knee. In providing this examination, the examiner is advised of the holding in Saunders v. Wilkie, 886 F.3d 1356, 1361-62 (2018) that pain alone may constitute a disability if it causes functional impairment and that the Veteran testified at his July 2021 Board hearing that he has experienced varying degrees of pain since a 1995 service incident where he fell from a standing position to his knees and injured his left knee. Lastly, the Veteran testified to receiving treatment at a private West Virginia University (WVU) pain clinic every two weeks for his left knee. These records will be obtained on remand. 2. Entitlement to service connection for a TBI is remanded. Despite evidence of a current TBI diagnosis as provided by his May 2017 VA psychiatric examination, as well as medical evidence and testimony indicating TBI symptoms of cognitive decline and altered mood persistent since his May 2011 in-service motor vehicle accident, the Veteran has not been provided a VA examination to address whether his currently diagnosed TBI is related to his military service, to include his May 2011 motor vehicle accident. In these circumstances, a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (noting the threshold for finding a current disability "may be" associated with the established event such that a VA examination is warranted is a low one). 3. Entitlement to service connection for narcolepsy, to include as due to service-connected unspecified depressive disorder, is remanded. The Veteran was provided a VA examination on the etiology of his narcolepsy as related to his service-connected depressive disorder in December 2017. The examiner opined the Veteran's narcolepsy is less likely than not caused by his service-connected depression, rationalizing "review of current medical literature reveals no evidence that depression causes narcolepsy." This opinion is inadequate for two reasons. First, the United States Court of Appeals for Veterans Claims (Court) has held that because causation and aggravation are separate, independent concepts, secondary service connection opinions require separate, independent rationales as to causation and aggravation. Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). Here, the examiner did not provide any rationale as to aggravation. Second, complete rationales require clear conclusions, supporting data, and a reasoned medical explanation connecting the two. Here, the examiner's opinion as to causation is conclusory. Moreover, the December 2017 examiner indicated, and the Veteran has contended his narcolepsy may be also associated with his currently diagnosed TBI. As such, the examination ordered herein should also investigate this potential relationship. 4. Entitlement to a TDIU is remanded. The Board is compelled to remand the Veteran's claim for TDIU. The Veteran's claim for a TDIU is inextricably intertwined with his pending service connection claims, as a positive determination of his service connection claims would affect the complete picture of service-connected disabilities contributing to the Veteran's potential inability to obtain substantially gainful unemployment. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Moreover, the Board observes the Veteran testified to increasing, concerning psychiatric symptoms at his July 2021 hearing, including intermittently obscure or illogical speech and behavior that may render him a persistent danger to himself and/or others. See Hearing Transcript; July 26, 2021, p. 7 (noting he sometimes leaves the stove on, cannot communicate, and will need to re-read the previous two to three chapters of a book he is reading) (emphasis added). On remand, the severity of his depressive disorder should be examined in relation to his claim for a total disability rating, as the proper rating for his depressive disorder will also affect the complete picture of the Veteran's disabilities contributing to his potential inability to obtain substantially gainful employment. Lastly, a remand will provide the Veteran an opportunity to supply information required to substantiate a claim for entitlement to TDIU, such as a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran and his representative are reminded of the July 2021 hearing offer to submit this information. Further, the Veteran is notified the Court of Veterans Appeals has held "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following actions: 1. Conduct appropriate development and provide a VA memorandum identifying the exact nature and dates of the Veteran's military service, to include his many periods ACDUTRA/INACDUTRA. 2. Send the Veteran a notice letter requesting that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability to obtain employment information and to authorize VA to contact his former employer(s) for additional information regarding his employment. The Veteran is invited to supply this information on his own behalf. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed left knee condition, to include pain that causes a functional impairment. The claims file and a copy of this remand must be made available to the examiner for review and the examination report must reflect such a review was accomplished. Any and all tests, studies, and evaluations deemed necessary by the examiner should be accomplished and reported in detail. Following a review of the record and this remand, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a currently diagnosed left knee disability or left knee pain causing functional impairment that is etiologically related to his military service, to include a 1995 incident where he fell from a standing position to the ground and punctured his knee with a sharp object and consideration of the Veteran's July 2021 hearing testimony of the incident and varying degrees of left knee pain since that time. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two must be provided for any opinion expressed. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his currently diagnosed traumatic brain injury (TBI). The claims file and a copy of this remand must be made available to the examiner for review and the examination report must reflect such a review was accomplished. Any and all tests, studies, and evaluations deemed necessary by the examiner should be accomplished and reported in detail. Following a review of the record and this remand, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed TBI is etiologically related to his military service, to include his May 2011 motor vehicle accident. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two must be provided for any opinion expressed. 5. Obtain an addendum opinion on the nature and etiology of the Veteran's currently diagnosed narcolepsy. The claims file and a copy of this remand must be made available to the examiner for review and the examination report must reflect such a review was accomplished. The need for an in-person examination is left to the examiner's discretion. Following review of the record and this remand, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's narcolepsy is (1) proximately due to or (2) aggravated by his service-connected depression. Also address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's narcolepsy is (1) proximately due to or (2) aggravated by his TBI. Causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30Vet. App.74 (2018). As such, the examiner must provide separate findings and rationales specifically related to causation and aggravation. Notably, aggravation under 38C.F.R. §3.310 (b) does not require that there be "permanent" worsening of the nonservice-connected disability. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two must be provided for any opinion expressed. 6. Schedule the Veteran for a VA examination to determine the current severity of his service-connected unspecified depressive disorder. 7. Then, readjudicate the claims on appeal. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.