Citation Nr: 21077320 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-24 830 DATE: December 29, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, is remanded. Entitlement to service connection for residuals of a head laceration or injury is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1968 to July 1970, and in the United States Marine Corps from August 1972 to July 1974. The Veteran died in April 2020; the Appellant, his surviving spouse, was properly substituted in June 2020. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2012 and November 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues were remanded in October 2018 and July 2021 for additional development. The issues have now been returned to the Board for appellate review. 1. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, is remanded. When VA undertakes to obtain an examination/opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion/examination is considered adequate "where it is based on consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As noted in the previous Board remand, given the conflicting evidence of record about whether the Veteran had a diagnosis of an acquired psychiatric disorder, and if so whether that diagnosis was related to the Veteran's military service, the Board found it necessary to obtain an addendum opinion reconciling these differences. To this end, the Board gave specific remand directives that included reconciling the findings of the September 2019 VA examination, which determined the Veteran did not meet the criteria for a DSM diagnosis of an acquired psychiatric disorder, with the remainder of the evidence of record, to include VA treatment records, the April 2016 opinion of Dr. HHG, and the January 2021 opinion of Dr. HHG that reflect diagnoses of depression, alcohol abuse disorder, and anxiety. The Board also directed that if a diagnosis of depression or anxiety is found to be valid at any time since October 2014, even if asymptomatic or resolved, the examiner should offer an opinion as to whether such is at least as likely as not that such has its onset in service, or is in any way related to the Veteran's time in service, to include as related to service-connected tinnitus or bilateral hearing loss; or if any diagnosed depression or anxiety was worsened beyond its natural progression (aggravated) by service-connected bilateral hearing loss or tinnitus. A new medical opinion was obtained in September 2021. The examiner stated she had reviewed the conflicting medical evidence and "there is no diagnosis for such a vague claim as 'acquired psychiatric disorder' making such a claim loosing [sic] credibility of the person claiming it. The claim for acquired psychiatric disorder is a blanket catch all term with no medical evidence to support it." In a later September 2021 addendum opinion, the same examiner stated, "there is NO connection between the claimed depression or anxiety being related to service connected tinnitus and or bilateral hearing loss." No rationale was provided for this opinion, and aggravation was not addressed as instructed. A remand by the Board confers on the claimant a legal right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. On remand, a new medical opinion that addresses all of the Board's remand directives must be obtained. 2. Entitlement to service connection for residuals of a head laceration or injury is remanded. When VA undertakes to obtain an examination/opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion/examination is considered adequate "where it is based on consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As noted in the previous July 2021 Board remand, the Veteran has reported physical and cognitive residuals that he attributed to a head laceration or injury in service. Because a September 2018 competency evaluation diagnosed the Veteran with a general neurocognitive disorder, a medical opinion was to be obtained to determine the nature and etiology of the Veteran's current neurocognitive disorder. The Board specifically instructed that if a diagnosis cannot be provided but the Veteran's condition manifested in symptoms that caused functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested etiology opinion. A new medical opinion was obtained in September 2021. The examiner rendered a negative opinion and, as rationale, stated "if the head injury had been the cause of a neurocognitive disorder it would have presented itself in the early 1970's NOT in 2018. The available STRs [service treatment records] show no treatment for any head injuries." However, the inquiry should not have ended there. As the Board instructed, the examiner was to also address whether the Veteran's condition manifested in symptoms that caused functional impairment, and if so, the examiner was to consider those symptoms a "disability" for the purpose of providing the requested etiology opinion. This was not done by the examiner. Moreover, although the opinion was to address the Veteran's neurocognitive disorder broadly, the examiner stated as part of the rationale, "Note that there is NO connection between the claimed depression or anxiety being related to service-connected tinnitus and or bilateral hearing loss." A remand by the Board confers on the claimant a legal right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. On remand, a new medical opinion that addresses all of the Board's remand directives must be obtained. 3. Entitlement to TDIU is remanded. The Board finds that this TDIU claim is inextricably intertwined with the pending claims for service connection. As any allowance of the service connection claims remanded herein could affect the outcome of the TDIU claim, the appropriate remedy for inextricably intertwined issues is to remand them pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Return the claims file to a qualified VA examiner other than the examiner who conducted the September 2019 VA mental disorder examination. The claims folder must be reviewed in its entirety, and the reviewer must specifically and thoroughly address each of the following: Reconcile the findings of the September 2019 VA examination which determined the Veteran did not meet the criteria for a DSM diagnosis of an acquired psychiatric disorder with the remainder of the evidence of record, to include specific discussion of the Veteran's VA treatment records, the April 2016 opinion of Dr. HHG, and the January 2021 opinion of Dr. HHG that reflects diagnoses of depression, alcohol abuse disorder and anxiety. If the examiner finds that the diagnoses are invalid, a basis for these opinions must be provided. If a diagnosis of depression, anxiety, or any other psychiatric disorder is found to be valid at any time since October 2014, even if now asymptomatic or resolved, the examiner must offer an opinion as to whether it is at least as likely as not (50 probability or greater) that such had its onset in service, or is in any way related to the Veteran's time in service, to include as related to service-connected tinnitus or bilateral hearing loss. If the answer to the above question is no, the examiner must opine as to whether it is at least as likely as not that any depression, anxiety, or any other diagnosed psychiatric disorder was caused by his service-connected bilateral hearing loss or tinnitus. If the answer to the above questions is no, the examiner must opine as to whether it is at least as likely as not that any depression, anxiety, or any other diagnosed psychiatric disorder was aggravated by service-connected bilateral hearing loss or tinnitus. A full and complete rationale for all opinions offered should be provided. 2. Obtain an opinion for the Veteran's neurocognitive disorder and/or other residuals of a head laceration. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a well-reasoned discussion as to whether the neurocognitive disorder or any residuals of head laceration are at least as likely as not related to service, including the head laceration during active service. The examiner must provide a rationale to support the opinion. 3. If service connection is granted for an acquired psychiatric disorder to include depressive disorder, or for residuals of a head laceration or injury, readjudicate the claim for entitlement to TDIU. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jiggetts, Tenisha 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.