Citation Nr: 21020821 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 20-01 544 DATE: April 8, 2021 REMANDED Entitlement to an initial compensable rating for pseudofolliculitis barbae is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and other specified trauma disorder is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to April 1988 and from April 1989 to April 1991. In a March 2020 decision issued by a different Veterans’ Law Judge the Board of Veterans’ Appeal (Board) denied an initial compensable rating for pseudofolliculitis barbae as well as remanded the claims for entitlement to service connection for sleep apnea and PTSD. The Veteran appealed the March 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s March 2020 decision to the extent that they denied an initial compensable rating for the Veteran’s pseudofolliculitis barbae. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for pseudofolliculitis barbae is remanded. As to the claim for entitlement to an initial compensable rating for pseudofolliculitis barbet, the March 2020 JMPR vacated and remanded the Board’s March 2020 decision because the Board failed to provide an adequate statement of reasons or bases for its decision in accordance with Burton v. Wilkie, 30 Vet. App. 286, 292 (2018). The Veteran underwent a VA examination in November 2017. The VA examiner noted the Veteran was using Mometasone cream constantly/near-constantly, to treat his condition, however the Court indicated it was unclear whether the examiner considered the cream to be systemic or topical in nature. Therefore, the Board finds that a remand to provide the Veteran with a clarifying VA examination to ascertain the whether the cream the Veteran used to treat his pseudofolliculitis barbae was topical or systemic in nature. See 38 U.S.C. § 5103A (d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and other specified trauma disorder is remanded. A remand order by the Board imposes a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s March 2020 remand instructed the VA examiner to provide an opinion as to whether it is at least as likely as not that the Veteran has any other psychiatric diagnosis (other than PTSD) currently (at any time since the claim was filed in September 2017. The examiner was also instructed that they must take as fact that the Veteran carried a diagnosis of other specified trauma and stressor related disorder during the appeal. Although VA medical opinions were obtained in May and November 2020, the Board finds they are inadequate because the VA examiners did not provide the requested opinion while taking as fact that the Veteran had a diagnosis during the appeal period as requested. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand is required to obtain the requested VA opinion. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran’s claim for service connection for sleep apnea is intertwined with his claim for service connection for a psychiatric disorder. The Board is therefore obligated to remand this issue to await the RO’s development and readjudication of the above psychiatric disorder claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). In addition, as the May and November 2020 VA examiners used the inadequate psychiatric disorder examination in their rationale for providing a negative nexus opinion. Therefore, the Board finds a new VA medical opinion regarding the Veteran’s sleep apnea is warranted once a new VA psychiatric opinion is obtained. The matters are REMANDED for the following action: 1. Associated with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative or the Veteran himself, to avoid further delay, should obtain these records (both VA and private treatment) and submit them to the VA. If all available records have been submitted, the Veteran’s representative should so indicate (in writing). 3. In order to comply with the JMPR, provide the Veteran with a VA examination to determine the extent and severity of his service-connected pseudofolliculitis barbae. The entire file must be reviewed by the examiner. All signs and symptoms necessary for rating the Veteran’s service-connected skin disability must be reported in detail. The examiner is asked to specifically address whether the Mometasone Cream the Veteran was using at the time of the November 2017 VA examination was topical or systemic in nature. Please explain why or why not. 4. Provide the Veteran with a VA examination to obtain medical opinions as to the diagnoses and origins of his acquired psychiatric disorders including PTSD (if any). The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a.) The examiner is asked to provide an opinion of whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a diagnosis of any acquired psychiatric disorder during the pendency of the appeal (since September 2017) to include PTSD and other specified trauma and stressor related disorder. The examiner must take as fact that the Veteran was given a diagnosis of other specified trauma and stressor related disorder during this appeal. In order to comply with the last remand, the examiner in providing the diagnoses and/or lack of diagnosis must specifically consider and discuss the September 2017 statement from a private psychologist. In this regard, if the record shows that the Veteran previously had any acquired psychiatric disorder and it resolved and/or it was re-diagnosed as another psychiatric disorder, the examiner must say so. b). As to each diagnosed acquired psychiatric disorder found to be present during the pendency of the appeal including PTSD and other specified trauma and stressor related disorder, even if it has since resolved, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during active duty service including the submarine collision with the U.S.S. KITTY HAWK in March 1984, or the death of his younger cousin or grandmother during service. Again, the matter of whether other specified trauma and stressor related disorder is related to reported service events should be specifically addressed in detail. 5. After the above-mentioned development is completed, obtain an addendum opinion from the November 2020 VA sleep apnea examiner. If that examiner is not available, another examiner with appropriate qualifications may provide the opinion. Another VA examination of the Veteran is not required unless deemed necessary by the VA examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is related to his military service or whether it was caused or aggravated by a diagnosed acquired psychiatric disability. If aggravation is found, please described the baseline severity of sleep apnea, prior to the aggravation. Aggravation means any increase in disability. The examiner must provide adequate rationale in support of all medical conclusions reached. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.