Citation Nr: 21006849 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-45 840 DATE: February 5, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include depression and generalized anxiety disorder (GAD), is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a prostate condition is remanded. REASONS FOR REMAND The Veteran had qualifying service from November 1956 to November 1958. In a February 2019 Decision, the Board remanded all issues herein for further medical development. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the reasons discussed below, the Board finds that the agency of original jurisdiction (AOJ) did not substantially comply with the February 2019 Board directives and that further medical development is still required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). 1. Entitlement to service connection for an acquired psychiatric disability other than PTSD In its February 2019 Decision, the Board remanded all issues herein for medical examination in the first instance. McLendon, supra. In its February 2019 directives, the Board advised the AOJ and the examiners that the absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). Notably, the Veteran has not contended and the evidence does not otherwise indicate that he has the medical background necessary to competently opine regarding the etiology of this condition because it is not lay observable. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, to date, the Veteran has not submitted any etiological opinions from private providers. As such, the only competent medical opinion currently of record regarding this condition is the November 2019 VA examination obtained by the AOJ upon remand; however, the November 2019 VA opinion is inadequate. Barr, supra. Specifically, the November 2019 examiner diagnosed GAD, but rendered an inadequate etiological opinion because: (a) the rationale relied on the lack of documentation of onset during service; (b) the rationale relied on the length of time that elapsed between service and onset; and (c) although the examiner diagnosed GAD and stated that she could only render an etiological opinion regarding the contemporaneous diagnosis (GAD) rather than prior diagnoses in the record (depression) without resorting to speculation, she then only provided rationale regarding depression (indicating that it was linked to the Veteran’s spouse’s diagnosis of breast cancer) rather than providing rationale regarding GAD. Buchanan, supra; Barr, supra; Stegall, supra. Thus, remand is required for an addendum etiological opinion that contains adequate rationale regarding all pertinent diagnoses during the appeal period. 2. Entitlement to service connection for diabetes mellitus In its February 2019 Decision, the Board remanded all issues herein for medical examination in the first instance. McLendon, supra. In its February 2019 directives, the Board advised the AOJ and the examiners that the absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a nexus opinion. Buchanan, supra; Barr, supra. Notably, the Veteran has not contended and the evidence does not otherwise indicate that he has the medical background necessary to completely opine regarding the etiology of this condition because it is not lay observable. Layno, supra; Jandreau, supra. Further, to date, the Veteran has not submitted any etiological opinions from private providers. As such, the only competent medical opinion currently of record regarding this condition is the November 2019 VA examination obtained by the AOJ upon remand; however, the November 2019 VA opinion is inadequate. Barr, supra. Specifically, the November 2019 examiner diagnosed diabetes mellitus type II, but rendered an inadequate etiological opinion because the rationale relied on: (a) the lack of documentation of onset during and within one year of service; and (b) the length of time that elapsed between service and onset. Buchanan, supra; Barr, supra; Stegall, supra. Thus, remand is required for an addendum etiological opinion that contains adequate rationale. 3. Entitlement to service connection for hypertension In its February 2019 Decision, the Board remanded all issues herein for medical examination in the first instance. McLendon, supra. In its February 2019 directives, the Board advised the AOJ and the examiners that the absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a nexus opinion. Buchanan, supra; Barr, supra. Notably, the Veteran has not contended and the evidence does not otherwise indicate that he has the medical background necessary to completely opine regarding the etiology of this condition because it is not lay observable. Layno, supra; Jandreau, supra. Further, to date, the Veteran has not submitted any etiological opinions from private providers. As such, the only competent medical opinion currently of record regarding this condition is the November 2019 VA examination obtained by the AOJ upon remand; however, the November 2019 VA opinion is inadequate. Barr, supra. Specifically, the November 2019 examiner diagnosed hypertension, but rendered an inadequate etiological opinion because the rationale relied on: (a) the lack of documentation of onset during and within one year of service; and (b) the length of time that elapsed between service and onset. Buchanan, supra; Barr, supra; Stegall, supra. Thus, remand is required for an addendum etiological opinion that contains adequate rationale. 4. Entitlement to service connection for a prostate condition In its February 2019 Decision, the Board remanded all issues herein for medical examination in the first instance. McLendon, supra. In its February 2019 directives, the Board advised the AOJ and the examiners that the absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a nexus opinion. Buchanan, supra; Barr, supra. Notably, the Veteran has not contended and the evidence does not otherwise indicate that he has the medical background necessary to completely opine regarding the etiology of this condition because it is not lay observable. Layno, supra; Jandreau, supra. Further, to date, the Veteran has not submitted any etiological opinions from private providers. As such, the only competent medical opinion currently of record regarding this condition is the November 2019 VA examination obtained by the AOJ upon remand; however, the November 2019 VA opinion is inadequate. Barr, supra. Specifically, the November 2019 examiner diagnosed benign prostate hypertrophy (BPH), but rendered an inadequate etiological opinion because the rationale relied on: (a) the lack of documentation of onset during and within one year of service; and (b) the length of time that elapsed between service and onset. Buchanan, supra; Barr, supra; Stegall, supra. Thus, remand is required for an addendum etiological opinion that contains adequate rationale. The matters are REMANDED for the following action: 1. Regarding the mental health claim, obtain an addendum etiological opinion that contains adequate rationale regarding all pertinent diagnoses during the appeal period (including GAD and depression). The AOJ and examiner are advised that the November 2019 VA etiological opinion was inadequate because: (a) the rationale relied on the lack of documentation of onset during service; (b) the rationale relied on the length of time that elapsed between service and onset; and (c) although the examiner diagnosed GAD and stated that she could only render an etiological opinion regarding the contemporaneous diagnosis (GAD) rather than prior diagnoses in the record (depression) without resorting to speculation, she then only provided rationale regarding depression (indicating that it was linked to the Veteran’s spouse’s diagnosis of breast cancer) rather than providing rationale regarding GAD. Buchanan, supra; Barr, supra; Stegall, supra. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested opinion. 2. Regarding the diabetes mellitus claim, obtain an addendum etiological opinion that contains adequate rationale. The AOJ and examiner are advised that the November 2019 VA etiological opinion was inadequate because the rationale relied on: (a) the lack of documentation of onset during and within one year of service; and (b) the length of time that elapsed between service and onset. Buchanan, supra; Barr, supra; Stegall, supra. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested opinion. 3. Regarding the hypertension claim, obtain an addendum etiological opinion that contains adequate rationale. The AOJ and examiner are advised that the November 2019 VA etiological opinion was inadequate because the rationale relied on: (a) the lack of documentation of onset during and within one year of service; and (b) the length of time that elapsed between service and onset. Buchanan, supra; Barr, supra; Stegall, supra. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested opinion. 4. Regarding the prostate claim, obtain an addendum etiological opinion that contains adequate rationale. The AOJ and examiner are advised that the November 2019 VA etiological opinion was inadequate because the rationale relied on: (a) the lack of documentation of onset during and within one year of service; and (b) the length of time that elapsed between service and onset. Buchanan, supra; Barr, supra; Stegall, supra. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested opinion. 5. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.