Citation Nr: 21071808 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-43 310 DATE: December 1, 2021 REMANDED Entitlement to service connection for a prostate disability, to include as secondary to hypertension, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to hypertension and/or a cervical spine disability, is remanded. Entitlement to service connection for a thoracolumbar spine disability, to include as secondary to hypertension and/or a cervical spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1968 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 and February 2021, the Veteran testified at Board hearings before the undersigned Veterans Law Judge. Transcripts of those hearings are associated with the claims file. In October 2018 and June 2021, the Board remanded these matters to the RO for further development. Entitlement to service connection for a prostate disability, to include as secondary to hypertension; entitlement to service connection for an acquired psychiatric disability, to include as secondary to hypertension and/or a cervical spine disability; and entitlement to service connection for a thoracolumbar spine disability, to include as secondary to the service-connected hypertension and/or a cervical spine disability Unfortunately, the Board finds that a remand is again warranted for all the Veteran's claims as there has not been substantial compliance with the June 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, in the June 2021 Board remand, the Board instructed that on remand a VA examiner provide an opinion as to whether the Veteran's claimed disorders were caused by or aggravated by his service-connected hypertension. Despite these instructions, the last VA opinions of record, in September and October 2021, only address the aggravation element of secondary service connection and do not contain separate opinions as to whether the Veteran's claimed disorders are caused by his service-connected hypertension. As such, a remand is warranted for addendum VA opinions that address the causation element of secondary service connection. Additionally, regarding the Veteran's prostate disability claim, the October 2021 VA examiner opined that the Veteran's prostate disorders were not aggravated by his service-connected hypertension, explaining, in part, that the Veteran's treatment records show "no evidence of permanent worsening" of either the Veteran's benign prostatic hyperplasia (BPH) or prostate cancer. This is the incorrect standard for determining whether a claimed disorder is aggravated by a service-connected disability. In this regard, the Court of Appeals for Veterans Claims (Court) recently held that for secondary service connection claims, "aggravation" need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). The Court explained that secondary service connection is warranted for "any incremental increase in disabilityany additional impairment of earning capacityin non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence." See id. at 239 (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). Accordingly, a remand is also warranted for an addendum VA opinion that addresses whether the Veteran's prostate disability is aggravated by his hypertension regardless of whether the Veteran's prostate disability permanently worsened during the appeal period. Regarding the Veteran's acquired psychiatric disorder claim, the Board finds that a remand is also warranted for addendum opinions addressing direct service connection and secondary service connection. In this regard, the September 2021 VA examiner opined that the Veteran's acquired psychiatric disorder was not aggravated by his service-connected hypertension because the examiner could not determine a baseline level of severity for the Veteran's psychiatric disorder. The VA examiner also noted that the first report of symptoms was in 1996. However, review of the record shows that the Veteran underwent a private psychological evaluation in October 1991 suggesting that he was depressed. The private evaluation also reflects the Veteran's reports that he believed his increased alcohol consumption, increased withdrawal and despondency, and decreased activity was related to his physical pain. As the September 2021 VA aggravation opinion is based on an inaccurate factual premise, a remand is warranted for another opinion. Additionally, in light of the Veteran's reports, on remand, a VA examiner should also address whether the Veteran's disorder is caused or aggravated by his service-connected cervical spine disability, to include any associated pain. Further, although the September 2021 VA examiner opined that the Veteran's acquired psychiatric disorder was not related to his active service, the examiner did not document consideration of, or otherwise address, the Veteran's reports of continuity of symptoms from in-service events as instructed to do so in the June 2021 Board remand directives. See Stegall, 11 Vet. App. at 271. Therefore, on remand, a VA examiner should also provide an opinion concerning direct service connection. Finally, regarding the Veteran's thoracolumbar spine disability, as the March 2020 VA back examination reflects the Veteran's reports that he feels his neck pain aggravates his back and, thus, tries to keep his neck straight as much as possible, on remand the AOJ should also obtain an opinion as to the relationship, if any, between the Veteran's thoracolumbar spine disability and his service-connected cervical spine disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, to include any outstanding mental health treatment records. The last VA treatment of record is dated June 2021. 2. Provide the Veteran with another opportunity to identify/and or submit any outstanding private treatment records related to his claims that have not already been associated with the claims file. After obtaining any necessary authorization from the Veteran, all identified records should be obtained. 3. Then, obtain an addendum opinion from an appropriate medical professional to address whether the Veteran's current prostate disability is secondary to his service-connected hypertension. The claims file, including a copy of this Remand, must be made available to and be reviewed by the VA examiner. The examiner is requested to furnish an opinion with respect to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current prostate disability, to include BPH and prostate cancer, is caused by his service-connected hypertension? (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current prostate disability, to include BPH and prostate cancer, is aggravated by his service-connected hypertension? If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was a medically ascertainable increase in disability regardless of permanence. The examiner is reminded that permanent aggravation need not be shown. Rather, aggravation refers to any incremental increase in disability resulting from service-connected conditions regardless of its permanence. See Ward v. Wilkie 31 Vet. App. 233, 241-42 (2019). The examiner should provide an opinion for BOTH causation and aggravation and a complete rationale should be given for EACH opinion. A discussion of the facts and medical principles involved would be of considerable assistance to the Board, to include citations to any medical literature, if appropriate. 4. Obtain an addendum opinion from an appropriate medical professional to address the Veteran's service connection claim for an acquired psychiatric disorder, to include as secondary to his service-connected hypertension and cervical spine disability. The claims file, including a copy of this Remand, must be made available to and be reviewed by the VA examiner. The examiner is requested to furnish an opinion with respect to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current acquired psychiatric disorder had an onset in active service or is otherwise related to active service? In providing the above opinion, the VA examiner must address the Veteran's reports of continuity of symptoms from service to the present time, to include his reports that he was depressed during service in Fort Polk, Louisiana, was upset when he was on alert and untrained relating to activity happening at the time in Yugoslavia, and was stressed about being continually threatened by his superior that he would be sent to Vietnam. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current acquired psychiatric disorder is caused by his service-connected hypertension and/or service-connected cervical spine disability, to include any associated pain? (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current acquired psychiatric disability is aggravated by his service-connected hypertension and/or service-connected cervical spine disability, to include any associated pain? If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was a medically ascertainable increase in disability regardless of permanence. In providing the above opinion, the examiner should consider the Veteran's report during the October 1991 private evaluation that he believed his increased alcohol consumption, increased withdrawal and despondency, and decreased activity was related to his physical pain and the November 2008 VA pain medicine consultation reflecting the Veteran's reports of neck pain and that he has become short-tempered and somewhat depressed. The examiner should provide an opinion for BOTH causation and aggravation and a complete rationale should be given for EACH opinion. A discussion of the facts and medical principles involved would be of considerable assistance to the Board, to include citations to any medical literature, if appropriate. 5. Obtain an addendum opinion from an appropriate medical professional to address whether the Veteran's current thoracolumbar spine disability is secondary to his service-connected hypertension and/or cervical spine disability. The claims file, including a copy of this Remand, must be made available to and be reviewed by the VA examiner. The examiner is requested to furnish an opinion with respect to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current thoracolumbar spine disability is caused by his service-connected hypertension and/or service-connected cervical spine disability, to include any associated pain? (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current thoracolumbar spine disability is aggravated by his service-connected hypertension and/or service-connected cervical spine disability, to include any associated pain? Consider any statements made by the Veteran as to the possible mechanical association between the two. If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was a medically ascertainable increase in disability regardless of permanence. The examiner should provide an opinion for BOTH causation and aggravation and a complete rationale should be given for EACH opinion. A discussion of the facts and medical principles involved would be of considerable assistance to the Board, to include citations to any medical literature, if appropriate. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.