Citation Nr: 21007295 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-39 956 DATE: February 9, 2021 REMANDED Entitlement to service connection for a cervical spine disability (for substitution purposes) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disease or injury (for substitution purposes) is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (for substitution purposes) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1952 to July 1954. He died in October 2019. The Appellant claims as his surviving spouse. These matters first came before the Board of Veterans’ Appeals (Board) in November 2015 at which time the Board denied the instant claims. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), in August 2016 the Court vacated the Board’s November 2015 decision as to the three issues currently on appeal. The Board remanded in March 2017 to obtain new VA examinations and medical opinions in compliance with the terms of the JMPR. These matters returned to the Board in December 2018, at which time the Board issued a decision denying each claim. The Veteran appealed that decision to the Court, resulting in a September 2019 Joint Motion for Remand (JMR) vacating the Board’s December 2018 decision. The Board remanded the matters in a September 2020 decision to obtain new VA medical opinions pursuant in compliance with the JMR. 1. Entitlement to service connection for a cervical spine disability (for substitution purposes) is remanded. The Appellant seeks service connection for a cervical spine disability. As explained above, the Board remanded the claim in September to obtain a new VA medical opinion in compliance with the Court’s September 2019 JMR. The requested opinion was provided in October 2020. Unfortunately, remand is required to clarify the examiner’s opinion. In the October 2020 opinion, the VA examiner states that the claimed cervical spine disorder was “at least as likely as not” incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner provided an entirely negative rationale clearly stating that the Veteran’s cervical spine disorder was not related to service. In the October 2020 Supplementary Statement of the Case, the Regional Office determined that the examiner’s selection of a positive medical opinion was a typographical error and did not seek further clarification from the examiner. Due to the discrepancy between the examiner’s positive conclusion and the negative supporting rationale, the Board finds the October 2020 VA opinion is ambiguous and will remand to obtain for an addendum opinion to clarify the opinion provided. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected lumbar degenerative joint disease; lumbar myositis, (for substitution purposes) is remanded. The Appellant seeks service connection for an acquired psychiatric disorder, to include as secondary to the Veteran’s service-connected lumbar spine diseases. As explained above, the Board denied service connection for an acquired psychiatric disorder in December 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims, September 2019 the Court granted a JMR vacating the Board’s decision and remanding for further development. The JMR noted that the June 2017 VA medical opinion did not comply with the Board’s prior March 2017 remand directives as it did not address whether the Veteran’s psychiatric disorder was aggravated by service-connected lumbar spine disorder pursuant to 38 C.F.R. § 3.310 (b). In order to comply with the JMR and our prior March 2017 remand directives, the Board remanded the claim in September 2020 to obtain an aggravation opinion. The requested opinion was provided in October 2020. Unfortunately, remand is again necessary to ensure compliance with our prior remand directives, as the opinion does not sufficiently address aggravation. First, the examiner determined that a temporal relationship between the claimed neuropsychiatric disorder and the service-connected back disorder had not been established, and reasoned that the Veteran’s lumbar degenerative joint disease; lumbar myositis preceded the neuropsychiatric condition by 62 years and, therefore, the neuropsychiatric condition could not be aggravated by the service connected back disorder. Regarding aggravation, it is largely irrelevant that the Veteran’s service-connected lumbar spine disorder preceded the onset of his dementia by several decades. A temporal requirement as contemplated by the October 2020 examiner is not present in 38 C.F.R. § 3.310 (b). The examiner provided little other rationale in support of her conclusion beyond asserting that many years had passed since the Veteran incurred his back disorder and when the Veteran’s neuropsychiatric condition was diagnosed.   Second, the examiner determined that the Veteran’s major neurocognitive disorder, also known as Alzheimer dementia, is not due, related, incurred, or associated in any way to his military service. She explained that the disorder is associated with the deposition of amyloid in the brain and is a genetically bound condition not associated to military service or any service-connected condition, and that a relationship is not established. The Court of Appeals for Veterans Claims has held that the use of words such as “related to” is not sufficient for an opinion to address the question of aggravation in a secondary service connection context. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In addition, there is little rationale for the conclusion beyond stating that a neurocognitive disorder cannot be related to military service, to include service-connected conditions. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required to ensure compliance with the Board’s previous September 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) (for substitution purposes) is remanded. The issue of entitlement to a total disability rating based on individual unemployability TDIU is inextricably intertwined with the claims for service connection for a cervical spine disability and an acquired psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Remand of the TDIU claim is required The matters are REMANDED for the following action: 1. Request an addendum opinion from the examiner who provided the October 2020 opinion for the Veteran’s cervical spine disability. The examiner is asked to clarify the inconsistent opinion provided with respect to whether the Veteran’s cervical spine disorder was at least as likely as not related to the Veteran’s service. In the October 2020 opinion, the examiner states that the claimed cervical spine disorder was “at least as likely as not” incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner provided an entirely negative rationale. Please clarify whether the opinion that the Veteran’s cervical spine disorder is “at least as likely as not” related to the Veteran’s service was a typographical error or, if not, provide a supportive rationale. 2. Return the claims file to an examiner of appropriate expertise to determine the etiology of the Veteran’s psychiatric disorder. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any psychiatric disorder was aggravated by the Veteran’s service-connected lumbar degenerative joint disease; lumber myositis. If lumbar degenerative joint disease; lumbar myositis aggravated a psychiatric disorder, the examiner should identify the percentage of disability which is attributable to the aggravation. 38 C.F.R. § 3.310. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the claims, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Appellant’s satisfaction, send the Appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.