Citation Nr: 21070223 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-04 190 DATE: November 23, 2021 ORDER Having received new and material evidence, the claim for service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is remanded. Entitlement to an evaluation in excess of 30 percent disabling for bronchial asthma is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from February 1979 to December 1986. In March 2021, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a Virtual Hearing. A transcript of that proceeding has been prepared and is associated with the file. The Veteran previously submitted a claim of entitlement to service connection for hypertension which was initially denied in an April 1977 rating decision on the basis that the Veteran's separation examination had normal blood pressure readings. The April 1977 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). Subsequent unappealed rating decisions confirmed and continued the denial in June 2004 and July 2011. In connection with the Veteran's claim to reopen, he testified that he had episodes of high blood pressure in service and that his doctors had told him that his asthma could have caused his hypertension, raising the theory of secondary service connection of hypertension due to his service-connected asthma, which has not been developed. See March 2021 Hearing Transcript. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Finally, the Veteran initially claimed service connection for depression. Claims of service-connection for psychiatric disorders are not limited to the diagnosis for which the Veteran claims service connection. According to the United States Court of Veterans Claims (Court), the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a Veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). For this reason, the Veteran's claim has been re-characterized as a claim for service connection for an acquired psychiatric disorder, to include depression and anxiety, to reflect the diagnoses of record. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. As noted above, the Veteran has raised the theory of service connection for his hypertension as secondary to his service-connected asthma. The Board observes that his service treatment records (STR) show that the episodes of high blood pressure were in conjunction with medication he was prescribed for his asthma. To date, no development for this theory of entitlement has been conducted. The Board finds that a remand is necessary to obtain a medical opinion. Moreover, the Board finds the November 2014 VA examiner's negative nexus opinion regarding direct service connection is not sufficient for adjudication purposes, as it did not address the high blood pressure readings related to the prescribed Theo-dur for the Veteran's asthma, as documented in the STRs. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Finally, the Board notes that hypertension is a chronic disease for which presumptive service connection may apply. The Board required a medical opinion which addresses this theory of service connection as well. 2. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is remanded. The Veteran testified that he had been told by his physician that his depression could be related to his service-connected disabilities. The Board requires a medical opinion addressing this theory of entitlement. In addition, the November 2014 VA examiner's negative nexus opinion lacks a sufficient rationale. Although the examiner noted the Veteran's separation examination included reports of mental health symptoms, the examiner raised the possibility of an Adjustment Disorder that could have been present then, but was no longer present currently, to support his negative nexus opinion. The Board notes that the record contains no diagnosis of Adjustment Disorder. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. Nieves-Rodriguez v. Peake, Vet. App. 295 (2008) (explaining that a medical report without "a reasoned medical explanation" lacks probative value). 3. Entitlement to an evaluation in excess of 30 percent disabling for bronchial asthma is remanded. The Veteran testified that his asthma symptoms had become worse since his last VA examination in October 2014. The Board notes that the current level of disability is most important in claims for an increased rating. Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("[W]here the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination."). Thus, the Board requires a current examination to assess the severity of the Veteran's disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran raised TDIU as part of his increased rating claim for asthma at his hearing. The Board notes that the issue of entitlement to a TDIU is part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the Board takes jurisdiction of the claim for TDIU and finds it is inextricably intertwined with the issues on appeal and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's hypertension at least as likely as not related to service, including his recorded high blood pressure reading related to the prescribed Theo-dur medication for his asthma as seen in the August 1984 and October 1985 STR entries? Is the Veteran's hypertension at least as likely as not proximately due to his service-connected asthma? Is the Veteran's hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected asthma, to include the prescribed medications to treat his asthma? Is it at least as likely as not that the Veteran's hypertension (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support each of the opinions. 2. Schedule the Veteran for a VA examination for his acquired psychiatric disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's acquired psychiatric disability at least as likely as not related to service? The examiner must address the Veteran's February 1986 Separation Physical wherein he reported "depression or excessive worry," "nervous trouble of any sort," and "frequent trouble sleeping." Is the Veteran's acquired psychiatric disability at least as likely as not proximately due to his service-connected disabilities? Is the Veteran's acquired psychiatric disability hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any of his service-connected disabilities? Provide a rationale to support each of the opinions. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected asthma. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Then, adjudicate the TDIU claim. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.