Citation Nr: 21013925 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-11 897 DATE: March 10, 2021 REMANDED Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease (CAD) prior to September 16, 2020, and in excess of 60 percent thereafter is remanded. Entitlement to an initial disability rating in excess of 20 percent for tuberculosis (TB) with residual left posterior basilar granuloma with chronic obstructive pulmonary disease (COPD), emphysema, shortness of breath and fatigue is remanded. Entitlement to service connection for bronchiectasis is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), panic attacks, anxiety, concentration impairment, memory problems, and depression is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disability is remanded. INTRODUCTION The Veteran served on active duty from May 1964 to April 1966. When this case was most recently before the Board in October 2019, the above-noted issues were remanded for additional development. The case has now been returned to the Board for further appellate review. REASONS FOR REMAND While further delay of this appeal is quite regrettable, the Board finds additional development is yet again required before the Veteran’s claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the above-referenced October 2019 remand, the Board instructed the RO to obtain a current VA respiratory conditions examination to assess for bronchiectasis, as the Veteran’s private physician has indicated he suffers from the disorder. The Veteran underwent a VA examination in September 2020; however, as a result of the COVID-19 epidemic the examiner was unable to conduct an in-person examination of the Veteran. As such, the examiner relied upon an outdated computed tomography (CT) scan to determine if the disability was present. Since the Board previously determined a CT was necessary to determine whether the disorder was present, this examination does not substantially comply with the remand directives, and as such, a remand is required. Another examination will also provide probative evidence that will be utilized to evaluate the Veteran’s other respiratory disorders, and as such, that issue must again remain in abeyance at this time pending the results of the requested examination. Next, the Board observes the Veteran also underwent a VA examination to assess the nature and etiology of his claimed psychiatric disorders in September 2020. Curiously, the examiner initially stated the Veteran had a diagnosis of PTSD that conforms to the DSM-5 criteria, and subsequently indicated his reported stressors satisfied the DSM-5 criteria. However, the examiner later indicated he did not satisfy the persistent re-experiencing or avoidance DSM-5 criteria. This creates a manifest discrepancy in the examination report. Additionally, the examiner failed to acknowledge or discuss the Veteran’s private treatment reports from the G.P. Group or the disability questionnaire provided by the Veteran’s private Psychiatrist, which indicate he does satisfy the criteria for PTSD. Based on these insufficiencies, the Board finds a new VA examination is warranted. Further, the Board notes the Veteran also underwent a VA heart conditions examination in September 2020. At that time, the examiner again performed an estimated metabolic equivalents (METs) assessment. Like the December 2017 VA examiner, the September 2020 examiner again found the Veteran’s METs would be assessed at greater than 3 to 5. The examiner again chronicled the Veteran reports of dyspnea, fatigue, and angina with activities such as light yard work and brisk walking. Though the examiner indicated the Veteran’s respiratory disability also contributed to his cardiovascular limitations, she determined she could not assess the Veteran’s METs based on his heart condition alone without resorting to speculation. Unfortunately, the examiner failed to explain why such a determination would be speculative, and whether the inability to provide a more definitive opinion is the result of a need for additional information. As the Veteran’s cardiovascular METs assessments have been consistent throughout the appeal period, and his service-connected respiratory disorder has contributed to his assessment, the Board finds a medical opinion from a Cardiologist would be helpful prior to final determination of this matter. Finally, the Board notes the issue of entitlement to a TDIU rating has been reasonably raised. In Rice v. Shinseki, the Court held that a request for a TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected. 22 Vet. App. 447, 453 (2009). In a recent January 2021 rating decision the RO determined the evidence of record shows the Veteran is not working and that his service connected heart condition prevents him from obtaining gainful employment. However, the RO deferred that issue for additional development. In this respect, the Board notes the Veteran has not been provided a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability for completion. As such, all indicated development should be conducted to obtain additional evidence to support the Veteran’s claim. Accordingly, these matters are REMANDED for the following actions: 1. Provide all required notice and development relative to the Veteran’s pending appeal for a TDIU rating. In this regard, specifically initiate development to obtain a completed VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability from the Veteran, as well as a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits to the Veteran’s former employer, if indicated. 2. Then, obtain an addendum medical opinion from a Cardiologist with sufficient expertise to comment on the Veteran’s METs level attributable to his service-connected CAD. All pertinent evidence of record should be made available to and reviewed by the examiner. A new examination should only be conducted if deemed necessary by the examiner. Following a review of the record, the examiner should provide an additional comment on the Veteran’s METs level attributable to his service-connected CAD alone. In this respect the examiner is asked to acknowledge the Veteran’s reports that he experiences angina and dizziness during activities such as light yard work and brisk walking. With this in mind, the examiner is asked to provide an estimated METs assessment based on the Veteran’s CAD disability alone. The examiner should fully explain how and why he or she formulated their estimated METs assessment on the basis of the Veteran’s heart condition alone. 3. Also, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s claimed bronchiectasis. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed, to specifically include a computed tomography (CT) scan to assess whether bronchiectasis is present. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran’s bronchiectasis at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include as a result of his TB illness therein; b) was caused by his service-connected TB with COPD and emphysema; or c) was worsened to any degree by his service-connected TB with COPD and emphysema. The examiner must provide a complete rationale for all opinions offered. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements, as well as the December 2009 treatment note from Dr. N.O-V., which indicates the Veteran has been diagnosed with bronchiectasis. If the examiner is unable to provide any requested opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Obtain a VA examination by a VA psychiatrist or psychologist, who has not previously examined this Veteran, to determine the etiology of all acquired psychiatric disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the review of the Veteran’s pertinent history and the examination results, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. A diagnosis of PTSD due at least in part to fear of military or terrorist activities during active service should be confirmed or ruled out. If the examiner determines PTSD has not been present during the period of the claim, he or she should explain why a diagnosis of PTSD is not warranted. If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis. With respect to each acquired psychiatric disorder, other than PTSD, that has been present during the period of the claim, to specifically include schizoaffective disorder, anxiety disorder, cognitive disorder, panic disorder and major depressive disorder, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service. In this regard, the examiner must consider and discuss the Veteran’s competent lay statements and assume such statements are credible for purposes of the requested opinions. Specifically, in forming an opinion, the examiner should include consideration of the Veteran’s statements concerning his service in the Republic of Vietnam. In addition, the examiner must also consider and expressly discuss the reports of the Veteran’s private Psychiatrist at the G.P. Group, as well as the disability questionnaire provided by that clinician in January 2020. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.