Citation Nr: 21013043 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 09-50 816 DATE: March 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected traumatic brain injury (TBI), is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 14, 2014, in excess of 20 percent from January 14, 2014 to June 29, 2020, and in excess of 30 percent from June 30, 2020 for cervical spine strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1983 to August 1987. These matters come before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Board issued a decision, in part, denying the claims on appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2015, the Court granted a joint motion for partial remand (JMPR) vacating the January 2015 Board decision and remanding the appeal to the Board. In compliance with the JMPR, the Boarded remanded the claims in July 2016, November 2017, and June 2018. In a July 2020 rating decision, the RO granted a 30 percent rating for cervical spine strain, effective June 30, 2020. The RO also granted separate ratings for bilateral upper extremity radiculopathy and Dependents’ Educational Assistance. In August 2020, the Veteran submitted a VA Form 20-0996 in response to the July 2020 rating decision and requested higher level review. However, since the claim for an increased rating for the cervical spine was already on appeal in the legacy system and since the VA Form 20-0996 was not submitted in response to a statement of the case or supplemental statement of the case with a request to opt into the Appeals Modernization Act (AMA) appeal system, the appeal for an increased rating for the cervical spine disability remains an appeal under the legacy system. As such, the matter is addressed herein. Finally, accompanying the VA Form 20-0996, the Veteran’s attorney submitted argument which included language addressing entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. Neither the Veteran nor his representative has argued that he is unemployed or unemployable and the November 2020 VA Mental Disorders Disability Benefits Questionnaire (DBQ) indicates that the Veteran continues to work a full work week. Therefore, the issue of entitlement to a TDIU has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009) As explained below, the Board is not satisfied that there was substantial compliance with its prior remand; therefore, the appeal must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected TBI, is remanded. In June 2018, the Board remanded this matter to obtain an opinion addressing whether any acquired psychiatric disorder diagnosed during the pendency of the claim, to include anxiety, alcohol use disorder, mood disorder, and unspecified bipolar disorder, was in any way due to service or due to or has been aggravated by a service-connected disability. An opinion was obtained in March 2019; however, the opinion report is inadequate. While the examiner addressed the Veteran’s anxiety disorder and alcohol use disorder, the examiner provided only a conclusory statement that the diagnoses were not related to service and not aggravated by a service-connected condition. The opinions were not supported by rationale. The examiner also addressed mood disorder and its relationship to service, to include the TBI incurred during service. However, the examiner did not address whether the TBI aggravated the mood disorder. Accordingly, the opinion report is inadequate for rating purposes. Additional opinions were obtained in November 2020; however, these opinions are also inadequate for rating purposes. After examining the Veteran, the examiner found that the Veteran had no current diagnosis of an acquired psychiatric disorder. In the opinion, the examiner did not address the diagnoses of anxiety, alcohol use disorder, mood disorder, and unspecified bipolar disorder, and whether any specific diagnosis offered during the pendency of the claim was due to service or due to or aggravated by service-connected disorders, such as TBI. The Board finds that the opinions do not substantially comply with the Board’s remand directives as the opinions do not adequately address the nature and etiology of all prior diagnoses, and the opinions expressed are conclusory and not supported by rationale sufficient to allow the Board to make an informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate for the purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, remand is required to obtain a medical opinion that adequately addresses the Board’s directives regarding the nature and etiology of all prior diagnosed psychiatric disorders, on both a direct and secondary basis, even if not currently present or deemed resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). 2. Entitlement to an initial rating in excess of 10 percent prior to January 14, 2014, a rating in excess of 20 percent from January 14, 2014 to June 29, 2020, and a rating greater than 30 percent thereafter for cervical spine strain is remanded. In June 2018, the Board remanded this matter, in part, to obtain a retrospective opinion on the functional impairment, if any, experienced during flare-ups since June 2009. An examination was conducted in June 2020; however, the examiner did not provide the required retrospective opinion. While the examiner stated that the Veteran’s neck disability is “much decreased compared to the measurements” of the 2011 and 2014 examinations, the examiner did not address whether he could estimate functional impairment due to flare-ups since June 2009. Therefore, remand is required to obtain an addendum opinion that complies with the Board’s remand directives. See Stegall, 11 Vet. App. at 268. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion that addresses the nature and etiology of all psychiatric disorders diagnosed during the pendency of the appeal (since April 2011). A full VA examination should not be scheduled unless it is deemed necessary by the clinician or otherwise required by the evidence. After reviewing the claims, the clinician should provide an opinion with respect to the following: (a) Identify all psychiatric disorders diagnosed since April 2011, to include anxiety, alcohol use disorder, mood disorder due to TBI, and unspecified bipolar disorder. (b) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disorder, even if currently resolved, was incurred in or caused by the Veteran’s active duty service? (c) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disorder, even if currently resolved, is caused by the Veteran’s service-connected disabilities, to specifically include TBI? (d) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disorder, even if currently resolved, is aggravated (permanently increased in severity beyond its natural progression) by the Veteran’s service-connected disabilities, to specifically include TBI? If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner must provide separate opinions addressing causation and aggravation on a secondary basis. In rendering the medical opinions, the examiner must specifically consider and address the VA psychiatric treatment notes from November 2012, March 2013, and September 2013, which indicate a diagnosis of "mood disorder due to TBI." The examiner is reminded that the lack of documented treatment or diagnosis for a psychiatric disability or symptoms during service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinion(s) offered, citing to medical evidence, such as examination findings, or other evidence in the record, when necessary, to support the conclusion(s) reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. 2. Request an addendum opinion from the June 2020 examiner regarding the severity of the Veteran’s functional impairment of the cervical spine due to flare ups since 2009. The claims file should be made available to the examiner in conjunction with the examination and it should be reviewed in its entirety. The examiner is asked to provide a retrospective opinion addressing the severity of any reported functional impairment experienced during flare-ups since June 2009 based on information procured from the Veteran, prior VA examinations, and any other evidence of record. The examiner should, to the extent possible, provide an assessment of the functional impairment during flare-ups in terms of the degree of additional range of motion loss. A full and complete explanatory rationale must be provided for any opinion(s) offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, s/he should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. G. Alderman, 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.