Citation Nr: 21071991 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-32 032 DATE: December 2, 2021 REMANDED Entitlement to service connection for chronic headaches, to include as due to service-connected disabilities, is remanded. Entitlement to an evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to November 5, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1986 to May 1992. In February 2020, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board of Veterans' Appeals (Board) hearing. A copy of the hearing transcript has been associated with the electronic claims file. This appeal was initially before the Board in June 2020. In the 2020 Board decision, an increased rating for fibromyalgia was denied; and claims for service connection for deviated septum, hand and foot arthritis, right knee disorder, rib pain, positive ANA, thyroid disorder, and gum surgery and higher evaluations for right breast scars were dismissed. The Board also remanded service connection claims for a nasal disorder and headaches, for a higher rating for service-connected PTSD, and for entitlement to TDIU. Subsequent to the 2020 Board remand development, in a December 2020 rating decision, the Veteran's claim for service connection for chronic sinusitis was granted with a 10 percent rating, effective June 11, 2014, and a noncompensable rating beginning November 5, 2020. She was also granted service connection for allergic rhinitis with deviated septum with a noncompensable rating, effective June 11, 2014. As such, these issues are no longer on appeal before the Board, though she is within the one-year timeframe to file a disagreement with the ratings if she so desires. In addition, in the December 2020 rating decision, the RO increased the rating for the Veteran's service-connected PTSD from 30 percent to 100 percent, effective November 5, 2020, the date of the most recent VA examination. As this does not constitute a full grant for the entire period on appeal, this issue remains on appeal for the period prior to November 5, 2020. AB v. Brown, 6 Vet. App. 35, 39 (1993). Finally, the Veteran was also granted entitlement to TDIU, effective December 31, 2014; however, as discussed further below, this was then severed in an April 2021 rating decision for jurisdictional reasons. See below. Unfortunately, although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran's claims, so that she is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. Specifically, additional development is necessary for addendum opinions. 1. Service connection for headaches As to the claim for service connection for chronic headaches, while the Board appreciates the detailed and extensive opinion provided by the July 2020 examiner, addendum opinions are requested. First, the examiner opined that the Veteran's headaches are not due to service, but rather are due to a "genetic condition of migraine headaches with the onset in childhood, and thus prior to enlistment." However, the statement that the Veteran's headaches may have pre-existed service requires an addendum opinion as her entrance examination is silent for any pre-existing condition. On remand, the examiner must address whether the chronic headache condition clearly and unmistakably pre-existed her military service, and if so, whether her military service aggravated this condition. See 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Further, the examiner's opinion that it is less likely than not the chronic headaches were permanently aggravated beyond the normal progression by service-connected PTSD is the incorrect standard regarding secondary service connection aggravation. See 38 C.F.R. § 3.310(b). The examiner is reminded that aggravation of a non-service-connected disability due to a service-connected disability does not require permanent worsening, unlike aggravation of a pre-existing condition during service under 38 C.F.R. § 3.310(b). See directives below. Finally, subsequent to this opinion, the Veteran became service connected for sinusitis and allergic rhinitis, with a November 2020 examiner noting that the Veteran "has longstanding history of nasal obstruction, headaches, postnasal drainage during the active duty period. Those symptomatology are consistent with allergic rhinitis." Her examination report noted that she still gets headaches and takes medication for them and they interfere with her daily living. However, the December 2020 SSOC stated that the Veteran's headaches "are a symptom of a service-connected condition that cannot be rated separately." This is untrue for several reasons. First, the Veteran may be awarded for secondary service connection if her chronic headaches are, in fact, due to or aggravated by the service-connected allergic rhinitis and sinusitis. Second, the RO specifically rated her at noncompensable for her allergic rhinitis, which debunks the SSOC statement that she cannot be separately rated for the headaches as she is not receiving a compensable rating for the headaches as part of the symptomology for the allergic rhinitis. As noted above, the Veteran is now service connected for allergic rhinitis and sinusitis. Therefore, this must be addressed on remand. 2. Evaluation in excess of 30 percent for PTSD As for the Veteran's claim for an evaluation greater than 30 percent prior to November 5, 2020 for service-connected PTSD, the Board finds an addendum opinion is warranted. Specifically, an opinion to clarify the November 2020 examination report findings and opinion is necessary. The examination report indicated that the Veteran's bipolar disorder and PTSD are unable to be differentiated by impairments caused by each mental disorder and that her bipolar symptoms are secondary to her PTSD symptoms, as the PTSD symptoms have a greater impact. The examiner then opined that the Veteran's PTSD was not aggravated by her bipolar disorder since her bipolar disorder is not service connected and that the symptoms from service are not her bipolar disorder, as there are no notes indicating onset in service, which is not true (see January 1990 diagnosis for panic disorder, and April 1990 diagnosis of panic disorder with agoraphobia and compulsive personality). Additionally, this was not what was asked; rather, the question was whether or not the Veteran's non-service-connected bipolar disorder was aggravated by her service-connected PTSD. Further, the opinions provided indicated it is less likely than not that the Veteran's bipolar disorder is linked to her PTSD or service, and stated that the private opinion linking bipolar and PTSD is done without any supporting evidence as there was no other evidence making the same connection or conclusion. As such, an addendum opinion is required to clarify whether the Veteran's bipolar disorder was aggravated by her service-connected PTSD and determine which, if any, symptoms are distinguishable from those due to service-connected PTSD for the entire period on appeal as indicated on the November 2020 examination report. Mittleider v. West, 11 Vet. App. 181 (1998). 3. Entitlement to TDIU As for the Veteran's claim for TDIU, the Board acknowledges that she was initially granted TDIU, effective December 31, 2014 in the December 2020 rating decision following the 2020 Board remand. However, in an April 2021 rating decision, the RO proposed to sever entitlement to TDIU due to a clear and unmistakable error, stating the claim was not in the proper jurisdiction of the RO that granted TDIU. It is unclear why the RO concluded there was a jurisdictional issue, because the Veteran's TDIU claim remains intertwined with the increased rating claim that is the subject of the present appeal and remand, and the Board does have proper jurisdiction of the claim. Accordingly, adjudication of the TDIU claim must await development and readjudication of this claim, as a claim that is inextricably intertwined with another claim that remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Request an addendum opinion from the July 2020 examiner, or another examiner if that examiner is not available, as to the etiology and nature of the Veteran's chronic headaches disorder. The entire claims file, including a copy of this remand, must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is asked to opine as to whether: (a.) The Veteran's headache disability clearly and unmistakably (obvious, manifest, undebatable) pre-existed the Veteran's entry into active service? (b.) If yes, is it clear and unmistakable (obvious, manifest, undebatable) that the preexisting headache disability was not aggravated (did not increase in severity) beyond its natural progression during service. The examiner should specifically cite to any evidence that supports the opinions and note the 2020 examiner's opinion that the headaches are due to a "genetic condition of migraine headaches with the onset in childhood, and thus prior to enlistment". The examiner is advised that if a condition is determined to have pre-existed service, than an opinion that the condition was not aggravated by service means the condition did not undergo an increase in severity or, if so, any such increase was due to the natural progression of the condition If found not to preexist service, the examiner is then asked to opine whether: (c.) the Veteran's claimed headache disability is at least as likely as not proximately due to her service-connected disabilities, to include sinusitis, allergic rhinitis, and PTSD? (d.) The Veteran's claimed headache disability is at least as likely as not aggravated by her service-connected disabilities, to include sinusitis, allergic rhinitis, and PTSD? The examiner should cite to any evidence to support the opinions. The examiner is advised that opinions regarding aggravation by service-connected disabilities, a "permanent" worsening or increase in severity of the currently diagnosed headache disorder is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is asked to consider the November 2020 examiner noting that the Veteran "has longstanding history of nasal obstruction, headaches, postnasal drainage during the active duty period. Those symptomatology are consistent with allergic rhinitis." Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 2. Request an addendum opinion from the November 2020 examiner, or another examiner if that examiner is not available. The entire claims file, including a copy of this remand, must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is asked to opine: (a.) whether it is at least as likely as not that the Veteran's bipolar disorder was caused or aggravated by her service-connected PTSD. (b.) If the answer to (b) is no, then the examiner should also offer an opinion regarding whether symptomatology associated with the Veteran's other diagnosed (but non-service connected) psychiatric disorders (e.g., her bipolar disorder) can be distinguished from the symptomatology associated with the service-connected PTSD. The examiner is asked to clarify the November 2020 examination report findings and opinions; specifically, that the bipolar disorder symptoms and PTSD symptoms can be differentiated; noted that the PTSD symptoms are more prevalent; but then opined that the bipolar disorder is not related to or connected with the PTSD symptoms. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue of entitlement to TDIU for the entire period on appeal. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.