Citation Nr: 21007159 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 11-04 656 DATE: February 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric condition, to include anxiety, and as secondary to the service-connected rheumatoid arthritis, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Army National Guard from March 1979 to July 1979, with periods of active duty for training (ACDUTRA), to include May 1980, June 1981, June 1982, May 1983, and from May 1984 to June 1984. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Board reopened the claim of service connection for rheumatoid arthritis and remanded that matter (on the merits) and the matter of service connection for anxiety for additional development. In October 2014, the matters were again remanded for additional development. In June 2017, the Board denied service connection for rheumatoid arthritis and anxiety. The Veteran appealed the June 2017 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2018 the Court issued a Memorandum Decision in which it vacated the Board’s June 2017 decision and remanded the matters of service connection for rheumatoid arthritis and anxiety for further development and readjudication. In January 2020, the Board further remanded these matters for an examination to obtain an adequate advisory medical opinion as to whether the Veteran’s currently diagnosed rheumatoid arthritis is related to symptoms reported or noted during a period of ACDUTRA. As the Veteran’s anxiety claim was inextricably intertwined with the rheumatoid arthritis claim, the Board deferred appellate consideration of that matter pending resolution of the rheumatoid arthritis claim. The Board directed that if, on remand, service connection for rheumatoid arthritis was established, then a medical nexus opinion for the anxiety claim would also be necessary. In September 2020, the Board granted service connection for rheumatoid arthritis and remanded the claim for service connection for an acquired psychiatric condition, to include anxiety, and as secondary to the service-connected rheumatoid arthritis, to obtain another medical nexus opinion. The matter returns to the Board for appellate consideration. The Board notes that the Veteran’s private representative submitted a motion to withdraw as the power of attorney in January 2020. In a December 2020 correspondence, the RO acknowledged the withdrawal and the Veteran proceeds unrepresented. Entitlement to service connection for an acquired psychiatric condition, to include anxiety, and as secondary to the service-connected rheumatoid arthritis, is remanded. The Veteran contends that his psychiatric condition is related to service, to include as secondary to his rheumatoid arthritis. Although the Board regrets the delay, another remand is required before an appellate decision can be rendered. In the September 2020 Board remand, the RO was instructed to schedule a VA examination to determine the nature and etiology of the claimed psychiatric condition. The examiner was asked to a) identify any psychiatric disabilities found upon examination or in the record of evidence; b) for any identified psychiatric disability, opine whether it is at least as likely as not that the disability is related to the Veteran’s periods of ACUDTRA; c) if a diagnosed disability is not found to be directly related to the Veteran’s ACDUTRA service, opine whether it is at least as likely as not that the disability was caused or aggravated by the Veteran’s rheumatoid arthritis; and d) if the Veteran’s rheumatoid arthritis did not cause, but aggravated a psychiatric disability, specify to the extent possible the degree of disability that resulted from such aggravation and a baseline of severity, if possible. Pursuant to the September 2020 Board remand, a November 2020 VA examination was administered. The examination reflected a diagnosis for unspecified anxiety. The examiner opined there was no direct service connection for anxiety or depression, no secondary service connection for the diagnoses of anxiety or depression due to arthritis or any other service-connected condition, and no permanent aggravation of any mental health disorder due to arthritis or any other service-connected condition. In support of this conclusion, the examiner reasoned, in part, as follows: Anxiety is less likely than not due to any service-connected disorder to include arthritis. Any previous diagnosis of anxiety was noted to be directly related to a CVA in 2009 which is not service connected. Any February 2010 comment about irritability or anxiety is directly related to his CVA in 2009 with subsequent recover issues/stressors of the time and not arthritis. The Veteran was seen in mental health in 2013 and 2014 for depression and anxiety due to serious financial/life stressors and continued post CVA anxiety. He stopped treatment in 2014 saying it helped to reduce anxiety and depression. The Veteran never noted arthritis as an issue that impacts him, in treatment notes, and did not mention it today. He is not in chronic pain and, in fact, is very active and works out daily. Anxiety is continued from and related to his stroke not rheumatoid arthritis. Rheumatoid arthritis does not aggravate any previously diagnosed anxiety. There are no limitations in work or physical activity due to this rheumatoid arthritis. There is no treatment for anxiety/depression due to rheumatoid arthritis. The last treatment note for review was in 2014 for the Veteran’s stated financial issues and a stroke. He had a stroke in 2009 and was incapacitated. Irritability, frustration, loss of interest and stress was directly related to his stroke. Anxiety and panic attacks (previously depression) are/were directly associated to the 2009 stroke (CVA). Additionally, in 2013/2014 he noted extreme financial difficulties as well as family issues, trying to sell his business, and his children going to school. The Board finds the November 2020 opinion is inadequate. The examiner failed to provide a sufficient rationale in support of the negative direct service connection and aggravation opinion. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The examiner concluded there was no direct service connection for anxiety or depression with no supporting facts or evidence relating to the Veteran’s periods of ACDUTRA. Similarly, the examiner provided a conclusory opinion indicating rheumatoid arthritis does not aggravate any previously diagnosed anxiety but did not explain why rheumatoid arthritis would or would not aggravate a psychiatric disorder. As such, a remand is required to obtain an addendum opinion to determine the nature and etiology of the Veteran’s acquired psychiatric disability. The matters are REMANDED for the following action: Obtain an addendum opinion from the November 2020 examiner, or another qualified clinician, to address the nature and etiology of the Veteran’s claimed acquired psychiatric disorder, to include anxiety. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. If evaluation of the Veteran is necessary, arrange to have the Veteran examined. The examiner is asked to determine the following: a) Whether it is at least as likely as not the Veteran’s psychiatric disability is related to the Veteran’s periods of ACDUTRA? b) Whether it is at least as likely as not the Veteran’s psychiatric disability was aggravated beyond its natural progression by the service-connected rheumatoid arthritis? “Permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.