Citation Nr: 21021967 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-53 172 DATE: April 14, 2021 REMANDED Service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. Service connection for headaches is remanded. Service connection for hypertension is remanded. Service connection for obstructive sleep apnea is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1966 to January 1969, to include service in Vietnam from January 1968 to January 1969. These matters come to the Board of Veterans’ Appeals (Board) on appeal from September 2014 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In July 2019, the Board remanded the Veteran’s claims for further development. Despite the additional and regrettable delay, another remand is required in order to ensure compliance with the Board’s prior remand directives and to ensure VA complies with its duty to assist as described in more detail below. 1. Service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. In July 2019, the Board remanded the claim for service connection in order to obtain a VA examination and medical opinion. The AOJ cancelled the Veteran’s examination due to the Covid-19 pandemic. An examination was rescheduled, and the Veteran requested rescheduling of some of his examinations. While the AOJ is correct that the Veteran did not specifically reference his psychiatric examination when he requested rescheduling, it is clear from the record that the Veteran intended to continue his appeal of this issue. Therefore, in light of the extenuating circumstances surrounding the Covid-19 pandemic, the Board finds the Veteran should be afforded another VA examination or telehealth interview. The Board is unable to render a complete and final adjudication of the claim without this examination and medical opinion. 2. Service connection for headaches is remanded. The October 2020 examiner opined that there was insufficient evidence to warrant or confirm a diagnosis of headaches in service. The examiner reasoned that medical records are silent for a headache condition. The examiner did not address completely the Board’s remand instruction nor the Veteran’s statements in their rationale. The examiner failed to address the secondary service connection remand directive. The examiner also did not assess what, if any, functional impairment the Veterans symptoms may have on his ability to work. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (despite lack of a formal diagnosis, symptoms may count as a disability for Department of Veteran’s Affairs (VA) compensation purposes if they cause functional impairment). 3. Service connection for hypertension is remanded. In an October 2020 VA examination, the examiner diagnosed the Veteran with hypertension and opined that it was at least as likely as not that his hypertension was incurred in service. The examiner stated that the Veteran’s “ETS in January 1969 was silent for hypertension but his initial QUAD National Guard Medical exam mentioned high blood pressure in August 1977 with onset of treatment in June 1982. The examiner further opined that the Veteran’s hypertension is not related to or caused by Agent Orange exposure and stated that it is not among the presumptive conditions. The examiner did not address the research article referenced in the Board’s July 2019 remand. In another section of the October 2020 VA medical opinion, the examiner opined that the preponderance of medical evidence does not support diabetes mellitus as a proximate cause or aggravator of hypertension in the setting of normal renal function. The examiner stated the Veteran’s hypertension is not caused or aggravated beyond natural progression due to diabetes mellitus. The examiner also opined that the Veteran’s hypertension is most likely related to multiple other risk factors such as smoking a pack of cigarettes a day for five decades, hyperlipidemia, natural ageing, family history, poor diet, and lack of exercise. The examiner also opined that the Veteran’s essential hypertension is less likely than not caused or related to his service-connected diabetes mellitus or ischemic heart disease (IHD). The examiner did not address whether heart disease aggravated the hypertension. There is a clear conflict within the medical opinion because it states that the Veteran’s hypertension is related to service in one section of the opinion and not related to service in another section, without explanation for the conflict. Additionally, the examiner did not fully explain why the Veteran’s hypertension is not caused or related to the Veteran’s service-connected IHD, did not address whether the Veteran’s IHD aggravated his hypertension, and did not address the research article cited to in the Board’s prior remand. Accordingly, the Board finds another remand is required in order to obtain an addendum medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (whenever VA provides an examination or obtains a medical opinion, it must ensure that the examination or opinion is adequate). 4. Service connection for obstructive sleep apnea is remanded. The service treatment records contain no complaints, history or findings consistent with a diagnosis of sleep apnea. After service, a February 2017 polysomnogram revealed obstructive sleep apnea. In a September 2017 Sleep Apnea Questionnaire, a clinician opined that the Veteran’s sleep apnea was more likely than not aided and permanently aggravated by the Veteran’s depressive disorder. As such, it would be premature to adjudicate the issue of whether the Veteran’s sleep apnea is related to an acquired psychiatric disorder, which may also be related to active duty service; therefore, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the Board must defer adjudication of the claim for service connection claim for sleep apnea until the AOJ adjudicates the claim for service connection for a psychiatric disorder, herein remanded. 5. A TDIU rating is remanded. The matter of entitlement to TDIU is inextricably intertwined with the Veteran’s other remanded issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should arrange for a VA examination (with an examiner OTHER than the October 2020 examiner), or telehealth interview, review of the record, etc., if an in-person examination is not feasible, of the Veteran to determine the nature and likely cause of any acquired psychiatric disorder. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: TO THE EXAMINER: The Board recognizes that the complex and intertwined nature of the medical questions involved requires significant work on the part of the medical examiner and the AOJ and regrets the need to remand the case to the AOJ. However, the Board is unable to adjudicate the claims until the requested information is provided. Therefore, the Board must ask the VA examiners and the AOJ to ensure compliance with the following directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. (a.) Please identify, by diagnosis, all psychiatric disorders present during the appeal period (from February 2015). (b.) For each psychiatric disorder diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c.) For each psychiatric disorder diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the disability was either caused or aggravated by the Veteran’s service-connected disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): August 2017 Mental Disorders Disability Questionnaire and evaluation report completed by a private psychologist. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purpose of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 3. The AOJ should arrange for a VA examination (with an examiner OTHER THAN the October 2020 examiner), or telehealth interview, review of the record, etc., if an in-person examination is not feasible, of the Veteran to determine the nature and likely cause of any headache disorder. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all headache disorders present during the appeal period (from February 2015). (b.) For each headache disorder diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c.) For each headache disorder diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the disability was either caused or aggravated by the Veteran’s service-connected disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (d.) The examiner is reminded that, by law, despite lack of a formal diagnosis, symptoms may count as a disability for VA compensation purposes if they cause functional impairment. The examiner should elicit from the Veteran what impacts his symptoms associated with his headaches may cause. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (e.) September 2017 the Veteran submitted a Headaches Disability Questionnaire completed by a private clinician who noted a diagnosis of migraine headaches associated with depression and ischemic heart disease. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 4. The AOJ should arrange for a VA medical opinion (from an opinion provider OTHER THAN the October 2020 examiner) and examination or telehealth interview (only if deemed necessary by the examiner) to determine the nature and likely cause of his hypertension disorder. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and any examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) The examiner must accept that the Veteran has been diagnosed with hypertension. (b.) For his diagnosed hypertension, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c.) For his diagnosed hypertension, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the disability was CAUSED by the Veteran’s service-connected disabilities? Please explain why. (d.) For his diagnosed hypertension, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the disability was AGGRAVATED by the Veteran’s service-connected disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): • An August 1977 medical examination, within the Veteran’s service treatment records, noted high blood pressure. • Although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), the National Academy of Sciences Institute of Medicine (NAS) has concluded that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). • Please reconcile the conflict in the October 2020 VA examination, in which the examiner states that the Veteran’s hypertension is related to military service and is not related to military service. The examiner indicated that the Veteran’s hypertension began in service. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 5. After the above is completed, the AOJ should readjudicate the issue of TDIU, taking into account any new information obtained from the above development. If a new medical opinion is required, the AOJ should obtain any necessary opinions or examinations. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.