Citation Nr: 21073748 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-36 241 DATE: December 10, 2021 REMANDED Service connection for mitral valve replacement (heart condition) is remanded. An increased disability rating in excess of 70 percent for service-connected posttraumatic stress disorder is remanded. Entitlement to an effective date earlier than May 19, 2017, for an increased disability rating of 70 percent for service-connected posttraumatic stress disorder is remanded. Service connection for tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1957 until his honorable discharge in November 1960. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from separate decisions by a Regional Office of the United States Department of Veterans Affairs (VA): A September 2017 decision awarded an increased disability rating of 50 percent for posttraumatic stress disorder (PTSD) effective May 19, 2017, and denied service connection for tinnitus. A March 2018 decision denied service connection for mitral valve replacement (claimed as a heart condition). The Veteran filed timely Notices of Disagreement and Substantive Appeals of both decisions, declining to have Board hearing. In June 2020, the Board issued a decision reopening the Veteran's claim for service connection for mitral valve replacement, finding new and material evidence was received, and remanded each claim to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain additional VA examinations and opinions as to each disability, which the VA Regional Office accomplished. Following further development, in an October 2021 rating decision, the VA Regional Office awarded an increased disability rating of 70 percent for the Veteran's service-connected PTSD effective May 19, 2017. The VA Regional Office continued to deny entitlement to an earlier effective date for the increased disability rating, and it continued to deny service connection for tinnitus and mitral valve replacement. The case now returns to the Board. REASONS FOR REMAND 1. Service connection for mitral valve replacement (heart condition) is remanded. 2. An increased disability rating in excess of 70 percent for service-connected posttraumatic stress disorder is remanded. 3. Entitlement to an effective date earlier than May 19, 2017, for an increased disability rating of 70 percent for service-connected posttraumatic stress disorder is remanded. 4. Service connection for tinnitus is remanded. 5. Entitlement to a total disability rating based on individual unemployability is remanded. First, with all claims for benefits, VA has the duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary [of VA]." 38 U.S.C. § 5103A(a)(1); see also 38 C.F.R. § 3.159(c) (implementing regulation). Part of this duty includes obtaining "relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(c)(1)(C). Pertinent to this appeal, VA's implementing regulation specifically lists Social Security Administration (SSA) records among the Federal agency records that VA is obligated to attempt to obtain. 38 C.F.R. § 3.159(c)(2). "Relevant records" are those records that relate to the injury or condition for which the veteran is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Because "it is not the case that a record's relevance can always be determined without reviewing the record itself," there "must be specific reason to believe [SSA] records may give rise to pertinent information to conclude that they are relevant" and, thus, give rise to VA's duty to attempt to obtain them. Id. at 1323. On January 21, 2020, VA associated with the Veteran's claims file, "SSA Inquiry Results," labeled within his claims file as "SSA Profile and Benefit Data." According to those results, the Veteran is in receipt of SSA disability benefits as of 1995. No attempts have been made to obtain those records or any associated medical records. Therefore, before the Board can adjudicate his claims, reasonable attempts must be made to obtain his SSA records as it is not clear from the available Inquiry Results whether the records are relevant. Second, the Board finds the September 2020 addendum opinions obtained by the VA Regional Office addressing the etiology of the Veteran's mitral valve replacement are insufficient at the present time. The examiner opined that the Veteran's mitral valve replacement was less likely than not incurred in or caused by his military service. The examiner's only rationale was that the Veteran's mitral valve replacement occurred 50 years after his military service and there was no evidence of mitral valve prolapse in service. The examiner's statements are merely conclusory and offer no explanation as to why the 50-year gap between service and his mitral valve replacement is dispositive. That is, the examiner did not connect the relied-on facts to his conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that an examiner's opinion relying on the absence of contemporaneous medical evidence must still "consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"). Likewise, the examiner's opinions addressing whether the Veteran's mitral valve replacement is secondary to his PTSD are also insufficient. While addressing the articles submitted the Veteran, the examiner only restated their premises and general facts he found. The examiner provided an insufficient explanation discounting the articles, and an insufficient explanation connecting the examiner's relied-on facts to his ultimate conclusions. Merely reciting facts is not a rationale. Third, the VA Regional Office scheduled the Veteran for a VA examination to address his claim of tinnitus, consistent with the Board's remand directive. But in a December 29, 2020, VA Form 21-0820, Report of General Information, the Veteran contacted VA and asked to submit a prior audiologic test in lieu of a new examination because the location for the examination was too far away for him. On December 31, 2020, VA received a private audiogram from the Veteran, dated July 31, 2020, which was actually part of a prior submission by the Veteran on August 28, 2020. There is no accompanying information about the interpretation of the audiogram. The Board finds this is an unusual circumstance. The Veteran was informed in the June 2020 Board Remand Order that a VA examination was required to address the etiology of his tinnitus, but he chose to forego that examination. Based on the December 29, 2020, VA Form 21-0820, Report of General Information, it does not appear the Veteran was informed of the consequences of foregoing the VA examination. The Board notes that there is scant evidence in the record addressing the onset of his tinnitus, which is something a VA examination would tend to develop. In addition, since the October 2021 Supplemental Statement of the Case, the most recent adjudication by the VA Regional Office of the Veteran's claim for service connection for tinnitus, the Veteran has raised a new theory of service connection. He now asserts, in addition to direct service connection, that his tinnitus may be secondary to his hypertension. He has submitted a medical article addressing a potential link. See November 12, 2021, Correspondence. As discussed next, he has a claim for service connection for hypertension pending before the VA Regional Office under the AMA system. Thus, the resolution of that claim may reasonably influence this claim for service connection for tinnitus. Fourth, the Veteran has filed a claim for service connection for hypertension under VA Claims and Appeals Modernization Act (AMA), 84 Fed. Reg. 2449 (Feb. 7, 2019). He has asserted as part of his claim for service connection for mitral valve replacement, which remains under the Legacy Appeal System, Pub. L. No. 115-55, 131 Stat. 1105 (2017), that his service-connected PTSD has caused his hypertension, and his hypertension has caused his mitral valve disability (which led to replacement). He has provided medical articles in support of his claim. See November 12, 2021, Correspondence. As the Veteran's claim for service connection for hypertension has not been completed, the Board is unable to adjudicate whether his mitral valve replacement has any relation to his service-connected PTSD. If service connection is ultimately granted for hypertension, then it may reasonably influence the determination as to service connection for mitral valve replacement. Fifth, as part of his claim for an increased disability rating, now in excess of 70 percent, for his PTSD, the Veteran has raised a claim for a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447, 45355 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). No development has been undertaken by the VA Regional Office to develop this claim. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Send the appropriate request to the Social Security Administration in order to attempt to obtain the Veteran's federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Provide the Veteran with a notice regarding what is necessary to substantiate a claim for entitlement to a TDIU and request that he complete and return a formal application for entitlement to TDIU and an authorization to obtain information from his previous employers. If the Veteran returns any form which is incomplete or contains insufficient information, he must be informed of such and be given the opportunity to provide a complete one. The Regional Office should take any additional, reasonable, and necessary developmental action. 4. After any additional records are associated with the claims file, obtain an addendum opinion from the September 2020 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's mitral valve replacement. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's mitral valve replacement (or circumstances leading to it) had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's mitral valve replacement (or circumstances leading to it) was caused by (proximately due to or as the result of) his service-connected posttraumatic stress disorder or associated medications? (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's mitral valve replacement (or circumstances leading to it) was aggravated by his service-connected posttraumatic stress disorder or associated medications? The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The following articles submitted by the Veteran: i. "Study adds evidence on link between PTSD, heart disease" (received by VA July 30, 2018) ii. "Antidepressants and Valvular Heart Disease, A Nested Case-Control Study in Taiwan" (received by VA July 30, 2018) iii. "Mitral Valve Problems" authored by the National Health Sciences Academy (received by VA November 12, 2021) iv. "Hypertension, a Posttraumatic Stress Disorder?" (received by VA November 12, 2021) v. The examiner is informed the Veteran has been service-connected for a psychiatric disorder since 1966. If the examiner disagrees with the premises or conclusions of the articles, then he or she should explain why. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his mitral valve replacement (or circumstances leading to it), including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a mitral valve replacement (or circumstances leading to it) in service or the assertion that the Veteran's service-connected PTSD led to his mitral valve replacement (or circumstances leading to it). See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's tinnitus. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The VA Regional Office should inform him of potential consequences of not having a VA examiner address his tinnitus, to include not being able to provide the examiner with additional information about the onset or severity of his tinnitus, which may result in a denial of his claim. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's military occupational specialty from May 1958 to August 1958 was a crew messman, which has a low probability of exposure to hazardous noise exposure according to the Department of Defense Military Noise Exposure Listing. (b.) The Veteran's military occupational specialty as a signalman from March 1960 until his discharge, which has a moderate probability of exposure to hazardous noise exposure according to the Department of Defense Military Noise Exposure Listing. (c.) At all other times, the Veteran's general duties as a seaman aboard a U.S. aircraft carrier for about three years as part of the flight crew during which time he asserts he was exposed to hazardous noise. See December 2017 Notice of Disagreement. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his tinnitus, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of tinnitus in service or the assertion that an in-service event, injury, or illness led to tinnitus. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 6. Only if the VA Regional Office first determines that the Veteran is entitled to service connection for hypertension through his November 2021 claim, then the VA Regional Office must obtain addendum opinions from appropriately qualified clinicians to address secondary service connection (causation and aggravation). That is: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's mitral valve replacement and tinnitus were caused by (proximately due to or as the result of) his hypertension. (b.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's mitral valve replacement and tinnitus were aggravated by his hypertension. The examiner is advised "aggravation" means an increase in the severity of the underlying disability beyond its natural progression. In making the determination whether to obtain addendum opinions, the VA Regional Office should develop the claims their natural and logical conclusions. K. Marenna Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.