Citation Nr: 21015110 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-06 643 DATE: March 16, 2021 REMANDED Entitlement to service connection for depression, to include as due to pulmonary hypertension and chronic renal insufficiency, is remanded. Entitlement to service connection for chronic renal insufficiency is remanded. Entitlement to service connection for pulmonary hypertension and acute respiratory failure is remanded. Entitlement to service connection for scar residuals, status post lung surgery, as secondary to pulmonary hypertension and acute respiratory failure, is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1986 to July 1999 and from October 2006 to December 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Military Order of the Purple Heart revoked their representation of the Veteran. This matter was previously before the Board in September 2018 and September 2019 in which the Board remanded the claims for additional development. The matters have been returned to the Board for further appellate review; however, an additional remand is warranted to obtain adequate medical opinions and to satisfy VA’s duty to assist. With regard to the duty to assist, the Board notes that STRs were deemed unavailable in a July 2014 Map-D Development Letter. However, VA correspondence from February 2017 indicates that service treatment records (STRs) were provided to the Veteran pursuant to his February 2016 privacy act request. In light of this finding, the RO should attempt to obtain the Veteran’s outstanding STRs while on remand. 1. Entitlement to service connection for depression, to include as due to pulmonary hypertension, acute respiratory failure, and chronic renal insufficiency is remanded. The Veteran has contended that his depression was caused while working in recruiting from 2006 to 2009, or alternatively, as a result of his pulmonary hypertension and/or chronic renal insufficiency. Pursuant to the Board’s prior remand, a medical opinion was obtained in November 2019 in which the examiner found that the Veteran’s depression was less likely than not related to service. The Board notes that this same examiner also provided a negative opinion in July 2019 where she reasoned that the Veteran’s depression was less likely due to the Veteran’s time in service as a recruiter but was due to his current medical conditions. However, this opinion was deemed inadequate because the examiner did not provide an adequate rationale. In the examiner’s November 2019 addendum opinion, the examiner supported her opinion by noting the Veteran was not treated for depression in service. She also reiterated her previous opinion and included a list of the Veteran’s medical conditions that she attributed his depression to. The Board finds the November 2019 addendum opinion is inadequate as the examiner relied on the absence of treatment in service as the basis for her opinion. This finding cannot, standing alone, serve as the basis for a negative opinion. Moreover, although the Veteran’s STRs were unavailable for review, in December 2016, the Veteran submitted a portion of his military records that described recruiting duty as a high stress environment; however, there is no indication that the examiner considered this finding in her opinion. The Board notes that when service treatment records are lost or missing, VA has a heightened duty to assist in developing the claim, as well as, to consider the applicability of the benefit of the doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). Therefore, remand is warranted to obtain an adequate medical opinion and to consider all relevant evidence of record. In addition, the Veteran’s depression claim is inextricably intertwined with his other claims on appeal; therefore, the claim must be remanded. 2. Entitlement to service connection for chronic renal insufficiency is remanded. 3. Entitlement to service connection for pulmonary hypertension and acute respiratory failure is remanded. The Veteran contends that his high cholesterol levels in 2009 led to his pulmonary hypertension and chronic renal insufficiency. Medical opinions were obtained in December 2019 to determine the etiology of the Veteran’s chronic renal insufficiency and pulmonary hypertension; however, the Board finds the opinions are inadequate for adjudicating the Veteran’s claims. With regard to the opinion concerning renal insufficiency, the examiner found that the condition was not related to service since there is no evidence of renal failure documented in the medical records until 2012; therefore, in the absence of treatment records showing treatment for acute renal failure of chronic renal insufficiency during service, it is less likely that chronic renal insufficiency occurred during service. Similarly, the examiner found it less likely that pulmonary hypertension and acute respiratory failure was caused by service since documentation show no pulmonary issues until 2012. The examiner acknowledged that high cholesterol levels can result in vascular disease that restrict blood flow causing the formation of blood clots, but there was no documentation of complaints of shortness of breath, swelling in the lower extremities, fatigue, or lack of energy on the Veteran’s clearance exam for separation in 2009. The examiner further noted that the Veteran’s history has been taken into consideration, but pulmonary hypertension, acute respiratory failure, and pulmonary embolism would have required urgent medical attention in 2009 and STRs show no treatment for these conditions. The Board finds the opinions are inadequate as the examiner based her opinions on the absence of treatment or a diagnosis in service. As noted previously, this finding alone, cannot serve as the basis for a negative opinion. The Board notes that this examiner, as well as, the July 2019 examiner both acknowledged that high cholesterol levels can result in vascular disease. Thus, the Board reiterates that the question for consideration is not whether the Veteran’s pulmonary hypertension, acute respiratory failure, and/or chronic renal insufficiency occurred in service, but whether the conditions were caused by service, or is causally related to service, to include his in-service high cholesterol finding. 4. Entitlement to service connection for scar residuals, status post lung surgery, as secondary to pulmonary hypertension and acute respiratory failure, is remanded. As the Veteran’s claim of service connection for scars, is inextricably intertwined with the claims currently on appeal, this claim also requires a remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claim folder. 2. Attempt to obtain the Veteran’s outstanding service treatment records. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. 3. After any additional records have been associated with the claims folder, schedule the Veteran for VA examinations with a qualified clinician to determine the etiology of the Veteran’s pulmonary hypertension and chronic renal insufficiency. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. PULMONARY HYPERTENSION: The examiner should provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran’s pulmonary hypertension with acute respiratory failure was incurred in service, or is otherwise related to service, to include his elevated cholesterol levels in 2009? RENAL INSUFFICIENCY: The examiner should provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran’s chronic kidney disease was incurred in service, or is otherwise related to service, to include his elevated cholesterol levels in 2009? The examiner is reminded that the absence of treatment or a diagnosis in service cannot serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so 4. Then, readjudicate the claims. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.