Citation Nr: 21073527 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-26 734 DATE: December 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder (to include memory loss), to include as due to service-connected disability, is remanded. Entitlement to service connection for fatigue, to include as due to service-connected disability and qualifying chronic disability, is remanded. REASONS FOR REMAND The Veteran had active service from September 1987 to August 1992. These matters are on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a February 2021 letter, the Board notified the Veteran that the VLJ who conducted his hearing had retired. That letter offered the Veteran the option of electing a new hearing before a different VLJ and indicated that if no response was received within 30 days, the Board would proceed without a hearing. See 38 C.F.R. § 20.707. A response was not received within 30 days. In a January 2019 decision, the Board denied service connection for memory loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted a Joint Motion for Partial Remand, which vacated the January 2019 decision insofar as it denied service connection for memory loss. The claim is now characterized as a claim for service connection for an acquired psychiatric disorder, to include memory loss. This appeal was remanded for additional development in January 2019, July 2020, August 2020, and April 2021. Unfortunately, a remand is once again necessary before a decision on the merits of the claims can be reached. The claims were last remanded in order to determine the etiology of the claimed acquired psychiatric disorder and fatigue. In June 2021, an addendum opinion was obtained from a VA clinician. The clinician diagnosed adjustment disorder and opined that it was due to the Veteran's (nonservice-connected) multiple sclerosis impairments when his condition was aggravated and current psychosocial stressors. The clinician indicated that it was less likely than not that the Veteran's adjustment disorder was proximately due to or aggravated beyond a natural progression by his other service connected disorders. The clinician referred to the Veteran's VA treatment reports as the rationale. The clinician also indicated that the Veteran was not fully compliant with his sleep apnea treatment and that sleep apnea caused disturbances in mood, concentration, energy, memory, and sleep. The clinician provided an addendum opinion in July 2021 and once again opined that it was less likely than not that the Veteran's psychiatric disorder was proximately due to or the result of the Veteran's service-connected headaches and/or fibromyalgia or aggravated by his headaches and/or fibromyalgia. The clinician again noted that the Veteran was not fully compliant with his sleep apnea treatment and that sleep apnea caused disturbances in mood, concentration, energy, memory, and sleep and opined that it was at least as likely as not that the Veteran's adjustment disorder was due to his (nonservice-connected) multiple sclerosis when his condition was aggravated and current psychosocial stressors. The examiner cited to the Veteran's VA treatment reports as supportive rationale. While it appears that the examiner attempted to include reference to VA treatment reports to support her conclusion that it was more likely that the Veteran's psychiatric disorder was due to nonservice-connected multiple sclerosis and possibly to nonservice-connected sleep apnea, she did not include any rationale as to why it was less likely due to or aggravated by his service-connected headaches or fibromyalgia. As such, another etiology opinion should be obtained. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examiner failed to provide a rationale for the opinion. As such, another etiology opinion should be obtained. With regard to the claim for fatigue, a supplemental VA medical opinion was obtained in July 2020. The examiner opined that the Veteran does not have chronic fatigue syndrome (CFS). The examiner explained that a review of VA medical records, the claims file, and service treatment records, was negative for findings of CFS. The examiner opined that, although a "diagnosis" of fatigue appears in the VA problem list, his diagnoses of depression, morbid obesity, obesity-related sleep apnea, and multiple sclerosis, explain his fatigue. The claim for service connection for fatigue is intertwined with the claim for service connection for an acquired psychiatric disorder and must be remanded pending additional development of the claim. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's acquired psychiatric disability. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently-diagnosed acquired psychiatric disorder, is (a) proximately due to or the result of the Veteran's service-connected headaches and/or fibromyalgia, or (b) aggravated (any incremental increase his acquired psychiatric disability beyond its natural progression) by his service-connected headaches and/or fibromyalgia. If the examiner finds that the Veteran has an acquired psychiatric disability that is at least as likely as not proximately due to or aggravated by a service-connected disability, is it at least as likely as not (50 percent probability or more) that any currently-diagnosed fatigue disability, is (a) proximately due to or the result of the Veteran's acquired psychiatric disability, or (b) aggravated (any incremental increase beyond its natural progression) by the acquired psychiatric disability. The examiner should specify whether the Veteran has fatigue which is a separate and distinct disability or whether fatigue is a symptom of any other disorder. All rendered opinions should include a thorough rationale. 2. Confirm that the VA medical opinions provided comport with this remand and undertake any other development determined to be warranted. 3. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.