Citation Nr: 21021743 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-20 400 DATE: April 13, 2021 REMANDED 1. Entitlement to service connection for tonsillitis, claimed as residuals of a tonsillectomy and sore throat is remanded. 2. Entitlement to service connection for vertigo is remanded. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. 4. Entitlement to a temporary total disability rating for mental health disabilities, to include PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 2000 to July 2014. The Board is mindful that there is some inconsistency as to whether the Veteran is currently represented in his claims. In April 2019, the Veteran submitted VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, in favor of Disabled American Veterans (DAV); however, in August 2019, the Veteran was notified by VA that his April 2019 form could not be accepted as it was unsigned by a representative from DAV. However, the Board is mindful that the Veteran had previously submitted a valid VA Form 21-22 in favor of DAV in June 2005, and DAV has submitted supporting argument and evidence on behalf of the Veteran throughout the appeal. Moreover, throughout his appeal, DAV has been included on various VA correspondence, including in March 2019, just prior to the Veteran’s submission of the April 2019 unsigned VA Form 21-22. Given the above, and without a specific request to invalidate the existing June 2005 VA Form 21-22, the Board will continued to recognize DAV as the Veteran’s appointed representative in these matters. 1. Entitlement to service connection for tonsillitis, claimed as residuals of a tonsillectomy and sore throat is remanded. 2. Entitlement to service connection for vertigo is remanded. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. 4. Entitlement to a temporary total disability rating for mental health disabilities, to include PTSD is remanded. By way of procedural history, the Board notes that the Veteran’s claims were previously remanded by the Board in September 2018 to afford the Veteran a VA examination to assess the nature and etiology of his claimed vertigo, tonsillitis, and PTSD. To this end, the RO notified the Veteran that a VA examination would be scheduled with regards to his claimed disabilities, as directed by the Board remand. Subsequent to the notification, the Veteran notified the RO that he was living aboard, in Morocco, and requested an examination be scheduled abroad. In February 2020, the Veteran was notified that he would be schedule for an examination at the US Embassy in Paris, France. However, upon receipt of the notice, the Veteran sent an email, dated February 26, 2020, noting that such arrangement in Paris was not possible, due to the safety concerns of COVID-19. In this same email, the Veteran requested a VA examination in the United States be scheduled when the pandemic ended, or when it was safe to travel. The Board notes that no VA examination in the United States were subsequently scheduled, nor any attempts to reach out to the Veteran with regards to coordinating safe travel to a VA facility for examination. The Board finds that at the time the VA attempted to schedule the Veteran’s VA examination at the United States Embassy in Paris, France, in February 2020, the COVID-19 pandemic was already severely affecting France, with quarantine and restricted travel throughout Europe. As such, the Board finds that the request to travel to France, which was in essence the epicenter of the pandemic in Europe at the time, is unreasonable, and therefore, the Veteran’s request for another examination time and location in the US constitutes good cause and is considered reasonable in light of the ongoing pandemic. As such, the Board finds the VA’s failure to afford the Veteran another chance to appear at a VA examination, or provide any accommodations regarding such examination at a VA facility, in light of a worldwide pandemic, to abridge the VA’s duty to assist the Veteran. Here, after receiving confirmation from the Paris Embassy that the Veteran refused his February 2020 examination, the VA record shows no attempts to schedule another examination in the US, as requested by the Veteran. As such, the Board finds that remand of the Veteran’s service connection claims is warranted in order to afford the Veteran another opportunity to schedule VA examinations regarding his claimed disabilities. Given remand of the Veteran’s service connection claims, the Board finds that the Veteran’s claim for a temporary total disability rating for mental health disabilities must also be remanded as inextricably intertwined with such claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations to determine the nature and etiology of his claimed vertigo, residuals of tonsillitis (status post tonsillectomy), and acquired psychiatric disability. The claims file must be made available to and reviewed by the appropriately qualified examiner(s). All indicated studies and/or diagnostic tests must be performed. The requested examinations may be conducted via telehealth or similar service as required per social distancing restrictions of the COVID-19 pandemic. If the above examinations cannot be scheduled due to such restrictions, then forward the claims file and a copy of this REMAND to an appropriate examiner(s) for an expert medical opinion without an in-person examination. The examiner(s) is asked to provide the following opinions: a) Is it at least as likely as not (50 percent or better probability) that vertigo had its onset during active service, or is otherwise etiologically related to such service, to specifically include the Veteran’s in-service traumatic brain injury (TBI). The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his vertigo. b) Is it at least as likely as not (50 percent or better probability) that the Veteran has any current residuals of his in-service tonsillitis, status post tonsillectomy, to specifically include a sore throat. c) Please identify all psychiatric disabilities present during the pendency of the appeal, or proximate thereto. Upon what facts and medical principles to you base this opinion? d) For each of the above diagnosed psychiatric disability, the examiner is asked to opine whether such disability clearly and unmistakably existed prior to the Veteran’s active service, and if so, whether such disability was clearly and unmistakably NOT aggravated by such service. The examiner must note that the Veteran’s lay statements alone are not a sufficient basis to support a finding that a disability clearly and unmistakably existed prior to the Veteran’s active service. Further, in forming the opinion, the examiner must address the in-service notations of psychiatric symptoms. e) For any identified psychiatric disability NOT found to preexist the Veteran’s active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. (Continued on the next page)   f) A full rationale must be provided for all medical opinions given above. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.