Citation Nr: 21075357 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-39 994 DATE: December 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include schizoaffective disorder, anxiety, and depression, is granted. Entitlement to service connection for hypertension, as secondary to an acquired psychiatric disability, is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD), as secondary to an acquired psychiatric disability, is granted. Entitlement to service connection for erectile dysfunction, as secondary to an acquired psychiatric disability, is granted. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder is etiologically related to his active service. 2. The evidence shows that the Veteran's hypertension is aggravated by his service-connected acquired psychiatric disability. 3. The evidence shows that the Veteran's GERD is aggravated by his service-connected acquired psychiatric disability. 4. The evidence shows that the Veteran's erectile dysfunction is aggravated by his service-connected acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder is met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310, 4.23. 2. The criteria for service connection for hypertension, as secondary to service-connected acquired psychiatric disability, on an aggravation basis, have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for GERD, as secondary to service-connected acquired psychiatric disability, on an aggravation basis, have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for erectile dysfunction, as secondary to service-connected acquired psychiatric disability, on an aggravation basis, have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1968 to July 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from August and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in August 2018, when the Board remanded the appeal for further development. The appeal has been returned to the Board for further appellate review. The Veteran contends that his acquired psychiatric disability was caused by his military service, and that it has been aggravated by his service-connected hearing loss and tinnitus. The Veteran also maintains that his hypertension, GERD, and erectile dysfunction are secondary to his acquired psychiatric disorder, to include as due to the prescribed medication for his acquired psychiatric disorder. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is caused or aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. Aggravation of a nonservice-connected disability pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the disability. Rather, aggravation in this context is any incremental increase in disability attributable to service-connected disability (i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence). Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). The law mandates resolving all reasonable doubt in favor of the claimant, to include with respect to questions of service origin. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to service connection for an acquired psychiatric disability The medical records demonstrate that the Veteran has a diagnosis of schizoaffective disorder, which includes mood symptomology of anxiety and depression. Therefore, the first requirement for service connection has been established. In August 2018, the Board remanded the issue of service connection for an acquired psychiatric disorder because the August 2015 VA mental disorders examination was deemed inadequate, as it failed to consider the Veteran's reports that he was being mistreated due to his service-connected hearing loss, which in turn affected his acquired psychiatric disorder. As such, the Veteran was afforded a new VA mental disorders examination in July 2019. The July 2019 VA examiner considered that the Veteran has obsessional rituals which interfere with his routine activities. The examiner explained that these rituals are in the form of thoughts and words in his brain that hanker back to his time in the Marines, where he heard repeated the Question, "What is your job Marine?" The only answer that was acceptable to the drill instructors in that era was to "Kill, Kill, Kill." The examiner acknowledged that the Veteran attributes his current and past mental illness issues to the constant drilling of these statements into his head during training, such that he feels compelled to continue this vigilance in defending his reputation and holding the standard of aggressive violence that affords him some peace of mind. The examiner related that the Veteran rarely has peace of mind in deference to the constant words in his head of anger, violence and retaliation. The July 2019 examiner also recognized the Veteran's statements that his hearing loss and tinnitus have caused difficulties with past and current supervisors who were mocking, bullying, and ridiculing him due to his hearing loss. The examiner noted a statement from an employment specialist, explaining that, "in the past, the Veteran's supervisors would constantly yell at him and belittle him because they would have to repeat themselves because he could not hear or understand what they were telling him in reference to his job. They would sometimes ask him questions such as 'are you stupid?' or 'are you a retard?' This would then cause depression and feeling of low self-esteem, anxiety, stress and sleeplessness." See Day Support Director Letter, June 23, 2015. The examiner further recognized the opinion of a VA psychologist stating that "it appears the Veteran's hearing impairment has led to work situations where he has felt humiliated or put down, which worsens his depression." See June 2015 Mental Health Note. Based on a review of the case file and an in-person examination the July 2019 examiner opined that the Veteran's acquired psychiatric disorder was at least as likely as not caused by the fact that the Veteran was verbally and emotionally abused by his drill instructor in the Marines in 1968 to 1969. The examiner also determined that the Veteran's acquired psychiatric disorder is at least as likely as not aggravated by his service-connected hearing loss and tinnitus. The examiner fully considered the Veteran's lay statements and the evidence of record in rendering these determinations, as required by the August 2018 Board remand. The August 2018 Board remand essentially determined that the Veteran's statements are competent and credible. Therefore, because the August 2015 VA examiner did not adequately consider the Veteran's lay statements, the opinion was deemed inadequate. Thus, remand was warranted for a new VA mental disorders examination that would consider the Veteran's statements. Following receipt by the RO of the July 2019 VA mental disorders examination opinion, the RO determined in a June 2020 VA memorandum that an addendum VA mental disorders examination was necessary because the positive opinions of the July 2019 examiner were based greatly on the statements of the Veteran. As such, a new VA mental disorders examination was scheduled that, for all intents and purposes, in combination with the June 2020 VA memorandum, directed the new examiner to disregard the Veteran's statements. Such development was in direct contradiction to the August 2018 remand requiring the Veteran's statements to be fully considered by the examiner. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Furthermore, it is not permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case; VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In this case, it can reasonably be construed that the RO simply did not agree with the July 2019 examiner's positive opinion and was directing an addendum opinion be provided that did not give full weight to the Veteran's statements in order to obtain a negative service connection opinion. The Board finds that the June 2020 VA memorandum calling for an addendum VA mental disorders opinion did not provide an adequate basis for further development. The June 2020 VA memorandum suggested a response that limited the field of inquiry by the expert. A question may not suggest an answer or limit the field of inquiry by the expert. See Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994); see also Austin v. Brown, 6 Vet. App. 547, 552 (1994). Although great weight was placed on the statements of the Veteran by the examiner, such was done in compliance with the August 2018 Board remand. The Board finds the July 2019 VA mental disorders examination was adequate and the examiner properly considered the evidence of record, to include the lay statements of the Veteran. The request for an addendum opinion, and ultimately the rescheduling for a new VA mental disorders examination, was in error by the RO. As mentioned above, the Veteran was scheduled for a new VA mental disorders examination in August 2021. However, not only was the development improper, the opinion of the August 2021 examiner is inadequate because the examiner did not fully consider the Veteran's statements. See Stegall. The opinions of the August 2021 examiner erroneously referenced the opinions of the June 2015 examiner, which was an opinion that was deemed inadequate by the Board. Therefore, the August 2021 opinion essentially mirrors the June 2015 opinion that was previously found to be inadequate. As such, the August 2021 VA mental disorders examination opinion is of no probative value. Therefore, the July 2019 VA mental disorders examination opinion is found to be the most probative medical opinion of record. Accordingly, in light of the probative evidence of record, to include the Veteran's competent and credible statements, and affording him the benefit of the doubt, the Board finds service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Board also notes that the grant of service connection is meant to encompass the full extent of the Veteran's present psychiatric symptomatology. In other words, it is a full grant of the benefit sought on appeal with respect to this claim. 2. Entitlement to service connection for hypertension 3. Entitlement to service connection for GERD 4. Entitlement to service connection for erectile dysfunction The Veteran is currently diagnosed with hypertension, GERD, and erectile dysfunction; and he has contended they are secondary to his acquired psychiatric disorder which, by virtue of this decision, has been service connected. (Continued on the next page) In August 2021, the Veteran was afforded VA examinations for his hypertension, GERD, and erectile dysfunction. The examiner opined that Veteran's hypertension, GERD, and erectile dysfunction were at least as likely as not aggravated beyond their natural progression by the Veteran's acquired psychiatric disability. The examiner's rationale was that the Veteran was prescribed quetiapine which has side effects of worsening hypertension, worsening gastrointestinal symptoms, and causing erectile problems. The August 2021 hypertension, GERD, and erectile dysfunction opinions are the most probative evidence regarding these issues, as the examiner provided sound reasoning for the opinions based on the evidence of record and no other evidence contradicts the positive opinion findings. Based on the above, the Board finds that the evidence shows the Veteran's hypertension, GERD, and erectile dysfunction were aggravated by his service-connected acquired psychiatric disorder. Accordingly, service-connection for hypertension, GERD, and erectile dysfunction are granted. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.