Citation Nr: 21021758 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-10 025 DATE: April 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, is remanded. Entitlement to service connection for a spine disability is remanded. Entitlement to service connection for bilateral leg numbness is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and January 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2018 when it was remanded for additional evidentiary development. Unfortunately, another remand is necessary prior to adjudication on the merits. 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety is remanded. The Veteran contends that his acquired psychiatric disability is related to his service, to include as secondary to his service-connected bilateral hearing loss and tinnitus. See December 2020 Attorney Brief. In accordance with the November 2018 Board remand, the Veteran was afforded a VA examination in October 2019. The VA examiner noted a diagnosis of unspecified anxiety disorder, and opined that the Veteran’s anxiety disorder is less likely than not incurred in or caused by his service. In support of this opinion, the VA examiner explained that the Veteran himself reported an anxiety onset 15 to 20 years post service as well as that his time overseas was very enjoyable. However, the October 2019 VA examiner only provided a nexus opinion as to direct service connection, and did not address the Veteran’s contentions regarding secondary service connection. Thus, the Board finds that a remand is warranted in order to obtain a medical opinion as to whether the Veteran’s acquired psychiatric disability is related to, caused by, or aggravated by his service-connected bilateral hearing loss and tinnitus. 2. Entitlement to service connection for a spine disability is remanded. Pursuant to the November 2018 Board remand, the Veteran was afforded a VA neck conditions examination in October 2019. The VA examiner noted diagnoses of degenerative arthritis of the spine, spinal fusion, and spinal stenosis. The VA examiner also noted that the February 2004 MRI report indicated that the Veteran had been diagnosed with degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine. However, the VA examiner’s nexus opinion only addressed the cervical DDD. Therefore, remand is necessary to obtain an etiology opinion regarding the Veteran’s cervical DJD. In addition, the record reflects that the Veteran has been diagnosed with spine conditions not addressed in the October 2019 VA neck conditions examination report, including lumbar spine DDD and DJD and thoracic spine DDD. See February 2005 private medical treatment record and March 2005 private radiology consultation report. On remand, etiology opinions should be obtained for all of the Veteran’s diagnosed spine conditions, including lumbar spine DDD and DJD and thoracic spine DDD. 3. Entitlement to service connection for bilateral leg numbness is remanded. In accordance with the November 2018 Board remand, the Veteran was afforded a VA examination in October 2019. A diagnosis of lumbar radiculopathy was noted. The VA examiner opined that the Veteran’s bilateral lower extremity radiculopathy is less likely than not incurred in or caused by service. In support of this opinion, the VA examiner merely stated that the Veteran was not seen or treated while in service for radiculopathy. The medical opinion is inadequate because an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d). Therefore, remand is warranted to obtain an adequate etiology opinion. The Board also finds that the issue of service connection for bilateral leg numbness is inextricably intertwined with the issue of service connection for a spine disability. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran is currently in receipt of service connection for tinnitus and a bilateral hearing loss disability, with a combined disability rating of no more than 10 percent. Thus, the Veteran is not entitled to a TDIU based on his current schedular rating. See 38 C.F.R. § 4.16 (indicating that a TDIU is warranted where the Veteran meets certain schedular requirements but that it is VA's policy that a TDIU is warranted whenever a Veteran is unemployable due to service connected disability). However, as a decision on the Veteran’s acquired psychiatric disability and bilateral lower extremity radiculopathy could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Therefore, remand of the TDIU is also required. The matters are REMANDED for the following action: 1. Obtain another medical opinion from the October 2019 VA examiner, or a suitable substitute, as to the nature and etiology of the Veteran’s acquired psychiatric disorder. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After review of the record, the examiner should provide the following opinions: (a.) Whether it is at least as likely as not (i.e., 50 percent greater probability) that any diagnosed acquired psychiatric disorder, including unspecified anxiety disorder, is related to or caused by the Veteran’s service-connected tinnitus and/or bilateral hearing loss. (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that any diagnosed acquired psychiatric disorder, including unspecified anxiety disorder, is aggravated by the Veteran’s service-connected tinnitus and/or bilateral hearing loss. Any increase/aggravation is sufficient, permanent aggravation is not required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). A detailed rationale should be provided for the opinions rendered. 2. Obtain another medical opinion from the October 2019 VA examiner, or a suitable substitute, as to the nature and etiology of the Veteran’s spine disability. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After review of the record, the examiner should address the following: (a) Identify all diagnosed disabilities of the cervical, thoracic, and lumbar spine. (b) For EACH diagnosed spine disability, to include cervical DJD, lumbar DDD and DJD and thoracic DDD, provide an opinion as whether it is at least as likely as not (i.e., 50 percent or greater probability) that the currently diagnosed spine disability is related to or caused by service. The examiner should note the following evidence: *The Veteran’s reports of intermittent back pain since 1978 or 1979. *The Veteran’s report of being diagnosed with a spine curvature condition within one year of separation from service. A detailed rationale should be provided for the opinions rendered. 3. Obtain another medical opinion from the October 2019 VA examiner, or a suitable substitute, as to the nature and etiology of the Veteran’s bilateral leg numbness. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the currently diagnosed lower extremity radiculopathy is related to or caused by service. 4. Then, readjudicate the issues on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.