Citation Nr: 21011773 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-20 228 DATE: March 2, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder (DO), to include depression, anxiety, panic, and adjustment DO is denied. REMANDED Entitlement to service connection for coronary artery disease (CAD), to include as secondary to sleep apnea/respiratory condition is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran failed to attend a VA examination without good cause, which was necessary to substantiate his claim. 2. The preponderance of the evidence of record is against a finding that the Veteran's acquired psychiatric DO is etiologically related to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression, anxiety, panic, and adjustment DO have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from April 1980 to September 1980 and from August 1985 to August 2011. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in September 2019. A transcript of the hearing has been associated with the record. In November 2019, the Board granted service connection for chronic bronchitis, and obstructive sleep apnea, as secondary to chronic bronchitis, and remanded the issue of entitlement to service connection for an acquired psychiatric disorder for further development. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as psychoses, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 1. Entitlement to service connection for an acquired psychiatric DO, to include depression, anxiety, panic, and adjustment DO The Veteran contends that an acquired psychiatric DO, to include depression and anxiety, is etiologically related to his service, to include as due to his participation in rescue activities following 9/11 and work stressors as a recruiter. In the November 2019 decision, the Board remanded the Veteran's claim, in part, to provide the Veteran with a VA examination to obtain a medical opinion that addresses the on-going nature of the Veteran’s psychiatric symptomatology. The Veteran failed to report for the VA examination. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. 38 C.F.R. § 3.655(a) (2019). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2019). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. Also, as a threshold matter, when a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a) (2019); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1091 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability of which the Veteran later complains. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). In this case, the examination was necessary because the Veteran's medical records do not contain an adequate medical opinion on the etiology of his acquired psychiatric DO. A review of the Veteran's service treatment records shows that at his September 1980 Return from Active Duty (REFRAD) exam and June 1985 enlistment exam, he had no prior mental health conditions. In a March 2011 Retirement medical examination, the examiner noted the Veteran reported panic attacks, anxiety, and nightmares since responding to the World Trade Center attacks, significant job-related stress, hypervigilance, startle response, and was easily tearful. The examiner noted the Veteran was positive for depression and diagnosed with anxiety DO not otherwise specified (NOS). A February 2012 VA examination established a diagnosis of adjustment disorder with mixed anxiety and depressed mood. However, the examiner opined that it was less likely than not that the condition was etiologically related to the Veteran’s service. In support of this opinion, he wrote that the condition was more likely related to the Veteran’s retirement and transition from service than from any in-service event. The examiner indicated that as the Veteran adjusted to his new life, the stressors would abate, and symptoms would decrease such that the criteria for a diagnosis would not be met. In an October 2013 disability benefits questionnaire (DBQ), the Veteran’s VA medical provider diagnosed anxiety, depression and panic disorder without agoraphobia. The medical provider did not opine that the psychiatric conditions are related to military service. Following the November 2019 Board remand, in November 2019 the VA completed a request for physical examination. A December 2019 VA report of general information shows that VA received notification that the Veteran will be recovering from surgery and to not schedule any exams for December 2019 and to wait until January 2020 to reschedule exams. In January 2020, VA sent a notification letter to the Veteran that previously VA received notification that the Veteran was unavailable to attend examinations due to convalescence, and the VA received notification that the Veteran failed to respond to its most recent attempt to schedule the necessary examinations for his current appeal. A March 2020 Report of General Information shows multiple attempts were made to contact the Veteran for scheduling efforts but the Veteran failed to respond. As explained in the November 2019 Board remand, the Veteran required an examination to determine the nature and etiology of any acquired psychiatric DO because the Board cannot make a fully informed decision regarding the claim of entitlement to service connection for an acquired psychiatric DO where a complete etiological opinion based on examination and review of the record is not of record. The October 2013 VA medical provider did not opine that the psychiatric conditions are related to military service. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes that a claimant, in pursuing a claim, has responsibility to cooperate in the development of all facts pertinent to his or her claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Neither the Veteran nor his representative has provided good cause for the Veteran failing to cooperate with the scheduling of a VA examination. Thus, the Board finds that the Veteran failed to report for a VA examination for his acquired psychiatric DO without good cause. Having found that the criteria under 38 C.F.R. § 3.655(a) are met, the disposition of the claim is contingent on the type of claim at issue. As this is an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). While the evidence shows a current disability, and in-service symptomatology, there is no competent persuasive evidence linking the current disability to in-service symptomatology. While lay persons are competent to provide opinions on some medical issues, determining the etiology of complex conditions such as psychiatric disorders falls outside the realm of common knowledge of a lay person. There is no competent persuasive medical evidence that the Veteran’s current psychiatric disorder is related to in-service events. The Veteran has not met his burden of proof, and thus the evidence of record is insufficient to substantiate the claim for service connection. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Accordingly, entitlement to service connection for an acquired psychiatric DO, to include depression, anxiety, panic, and adjustment DO is denied. REASONS FOR REMAND 2. Entitlement to service connection for CAD secondary to sleep apnea/respiratory condition is remanded. 3. Entitlement to TDIU is remanded. By a July 2015 rating decision, the RO, in relevant part, denied the Veteran's claim for entitlement to service connection for CAD and entitlement to a TDIU. In August 2015, the Veteran filed a Notice of Disagreement with respect to the denials. The RO has not, however, provided the Veteran with a statement of the case for his claims for CAD and TDIU. Under these circumstances, the Board must remand, rather than refer, the claim back to the RO to issue a statement of the case and to provide the Veteran an opportunity to perfect an appeal of such issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. In response to the Veteran's August 2015 Notice of Disagreement, take all indicated action pursuant to 38 U.S.C. § 7105 in order to furnish the Veteran a fully responsive statement of the case relating to the issues of entitlement to service connection for CAD and entitlement to a TDIU. Only if the Veteran perfects a timely appeal should this matter be certified and returned to the Board and after any necessary development has been completed. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edwin B. Esmenda, 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.