Citation Nr: 21005422 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-55 653 DATE: February 1, 2021 REMANDED Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a cardiovascular disability, to include coronary artery disease (CAD), is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a several rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO): (1) a September 2016 rating decision denied service connection for a heart disability, an acquired psychiatric disorder, and a right leg disability; (2) a March 2017 rating decision denied entitlement to a TDIU rating; and (3) a September 2017 rating decision denied service connection for a thoracolumbar spine disability. As these claims have followed separate procedural paths, further procedural history is provided in the corresponding sections. The Board notes that the Veteran’s service treatment records are unavailable. See Military Personnel Records. In instances where a claimant’s service treatment records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant’s favor. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). 1. Entitlement to service connection for a right leg disability is remanded. In a June 2019 decision, the Board denied the claim for entitlement to service connection for a right leg disability. The Veteran appealed the denial to that Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMPR. The claim has returned to the Board for further appellate proceedings. The Veteran contends that he has pain in his right leg that affects his gait. See October 2017 VA Form 21-4138. He has asserted that his condition is caused by either his thoracolumbar disability or a result of a training injury in service when he fell from a pole. See May 2017 VA Form 21-526b; see also October 2017 VA Form 21-4138. The record raises the additional theory that the Veteran’s right leg disability may be related to his acquired psychiatric disorder, described as restless leg syndrome. See May 2017 private medical records. The Veteran has not been afforded a VA examination. Consistent with VA’s duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, has a low evidentiary threshold. Id. There is insufficient competent evidence of records for VA to decide whether the Veteran’s right leg pain with gait impairment is a result of a training injury in service. The Board notes that the Veteran is not service connected for his thoracolumbar disability or an acquired psychiatric disorder, but these claims are on appeal here and, thus, this claim is inextricably intertwined with them. Therefore, the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran’s alleged right leg pain with gait impairment is related or attributable to his time on active duty or any service-connected disability. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. Relevantly, the Board denied the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in the June 2019 decision. In their JMPR, the parties agreed that the Board’s decision to deny service connection for PTSD was not challenged. In June 2019, the Board remanded the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded the claim for a medical opinion as to whether the Veteran’s acquired psychiatric disorder was aggravated by his service-connected tinnitus. The claim is back before the Board for further appellate proceedings. The Veteran has major depressive disorder (MDD). See July 2019 VA examination report; see also May 2017 private medical records. He contends that he has an eating disorder that contributes to his obesity; his obesity serves as an alleged intermediary step for additional claims on appeal discussed more below. See March 2018 VA treatment records. The Veteran contends that his acquired psychiatric disorder was caused by his service-connected tinnitus. See October 2016 VA Form 21-526. He has also stated that he first experienced mental health difficulties in 1978 and first received mental health treatment in 1982 in compliance with a State Court Order in a divorce proceeding. The Veteran was afforded two VA examinations for his MDD. See March 2017 and July 2019 VA examination reports. Both examiners opined that the Veteran’s MDD is not related to his tinnitus. Id. The March 2017 examiner explained that while tinnitus is a significant stressor, the MDD is most likely related to a 1996 psychiatric disturbance. Id. Similarly, the July 2019 examiner explained that the Veteran first sought treatment in the 1990s, that the onset of the Veteran’s MDD occurred after his tinnitus, and that “it is exceedingly unlikely” that his tinnitus is etiologically related to his MDD because of “general base rates” for causation. Id. These opinions ignore the Veteran’s contention that he first experienced mental health difficulties in 1978 and that he was Court ordered to undergo a 1982 mental health evaluation with treatment in a divorce proceeding. Thus, a new examination is necessary. 3. Entitlement to service connection for a cardiovascular disability, to include CAD, is remanded. In June 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded for an opinion as to the nature and etiology of any currently diagnosed heart disability. The claim is back before the Board for further appellate proceedings. The Veteran was afforded a new VA examination on remand. See July 2019 VA examination report. Though the Veteran was diagnosed with several cardiovascular disabilities, the examiner only provided an opinion as to his CAD. Id. The Board’s remand instructions requested the examiner to provide an etiological opinion as to any currently diagnosed cardiovascular disability, not CAD alone. Thus, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that his cardiovascular disability is caused or aggravated by his service-connected tinnitus. See October 2020 correspondence. More specifically, the Veteran’s representative asserts that the Veteran’s cardiovascular disability was caused by hyperlipidemia, that his hyperlipidemia was caused by his obesity, that his obesity was caused by his eating disorder, and that his eating disorder was caused by his tinnitus. Id. In support of this contention, the Veteran filed corresponding medical articles. Id. The July 2019 examiner opined that the Veteran’s CAD was not proximately due to or aggravated beyond its natural progression by the Veteran’s tinnitus. See July 2019 VA examination reports. The examiner explained that “although the tinnitus can be associated with CAD, only 11.76 [percent] have been documented” in a study completed with a small sample size. Id. It is unclear whether the examiner is concluding that the supporting article is erroneous or that the Veteran’s tinnitus does not fall within the 11.76 percent rate of associated causation. Id. The former conclusion would require additional rationale to fulfill an adequate opinion. As the Board cannot discern the examiner’s rationale based on a single conclusory premise, the opinion is inadequate for adjudicate purposes. A new opinion is required on remand. 4. Entitlement to service connection for a thoracolumbar spine disability is remanded. In June 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded to afford the Veteran a VA examination. The claim is back before the Board for further appellate proceedings. The Veteran has degenerative arthritis. See June 2020 VA examination report. He contends that his disability is a result of a 1977 back injury during a training exercise in active duty service. See July 2017 VA Form 21-526b. The June 2020 VA examiner opined that the Veteran’s arthritis was less likely than not directly related to active duty service. See June 2020 VA examination report. The examiner explained that no evidence in the record shows that the Veteran took medication or used any “pertinent” assistive devices. Id. However, the Veteran reported to the examiner that he was prescribed pain pills at the time of the injury, that he stopped medications because they were ineffective, and that using a shopping cart helps relieve his pain when he goes shopping. Id. Without more, the examiner’s opinion appears to rely on an inaccurate factual premise. Thus, the opinion is inadequate for adjudicative purposes. See Reonal v Brown, 5 Vet. App. 458 (1993); see also Allday v. Brown, 7 Vet. App. 517 (1995). Therefore, a new opinion is required. Moreover, the examiner noted that the Veteran’s range of motion was impaired due to his obesity. See June 2020 VA examination. As one of the Veteran’s contentions is that his obesity is a result of an eating disorder developed in service, this claim is inextricably intertwined with the claim for entitlement to service connection for an alleged eating disorder. 5. Entitlement to TDIU is remanded. The Veteran contends that his service-connected tinnitus and alleged disabilities secondary to tinnitus contribute to his inability to work. See October 2016 VA Form 21-8940. As a decision on the remanded claims in this order could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right leg disability, acquired psychiatric disorder, heart disability, and thoracolumbar spine disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Request that the Veteran provide a copy of the 1982 Court Order in his divorce proceeding that required him to undergo a psychiatric evaluation and treatment. 3. After the above development is completed, schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disorder, to include MDD and an alleged eating disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all acquired psychiatric disorders present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s acquired psychiatric disorder was incurred in, or is otherwise related to, his time on active service, to include allegedly feeling stressed, angered, anxious, and irritable therein? B. Is it at least as likely as not that the Veteran’s acquired psychiatric disorder was (a.) caused or (b.) aggravated by his service-connected disabilities, to include tinnitus? The examiner is to discuss the Veteran’s alleged symptoms in service. The examiner is also to discuss the alleged 1982 mental health treatment and any associated records, if available. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the above development is completed, schedule the Veteran for an examination to determine the nature and etiology of any cardiovascular disability, to include CAD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all heart disabilities present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s cardiovascular disability was incurred in, or is otherwise related to, his time on active service, to include obesity and/or hyperlipidemia as an intermediary step or steps? B. Is it at least as likely as not that the Veteran’s heart disability was (a.) caused or (b.) aggravated by his service-connected disabilities, to include obesity and/or hyperlipidemia as an intermediary step or steps? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After the development in numbers 1 through 3 are completed, schedule the Veteran for an examination to determine the nature and etiology of any thoracolumbar spine disability, to include arthritis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all thoracolumbar spine disabilities present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s thoracolumbar spine disability was incurred in, or is otherwise related to, his time on active service, to include a fall from a pole during training therein? B. Is it at least as likely as not that the Veteran’s thoracolumbar spine disability was (a.) caused or (b.) aggravated by his service-connected disabilities, to include obesity as an intermediary step? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. After the development in numbers 1, 2, 3, and 5 are completed, schedule the Veteran for an examination to determine the nature and etiology of any right leg disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all right leg disabilities present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s right leg disability was incurred in, or is otherwise related to, his time on active service, to include a fall from a pole during training therein? B. Is it at least as likely as not that the Veteran’s right leg disability was (a.) caused or (b.) aggravated by his service-connected disabilities, his thoracolumbar spine disability, or his acquired psychiatric disorder? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 7. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.