Citation Nr: 21022104 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-25 515A DATE: April 14, 2021 REMANDED Entitlement to service connection for chronic pain syndrome, to include as secondary to service-connected degenerative disease of the cervical spine is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) with chest pain, to include as secondary to service-connected degenerative disease of the cervical spine is remanded. Entitlement to an evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from August 1972 to August 1976. Review of the record indicates that this matter has been previously remanded on multiple occasions, to include most recently pursuant to a September 2019 Board decision. Therein, this matter was remanded for additional development to include obtaining missing VA treatment records and scheduling the Veteran for a new VA examination. Regrettably, the Board finds that an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). Entitlement to service connection for chronic pain syndrome and gastroesophageal reflux disease (GERD) with chest pain, to include as secondary to service-connected degenerative disease of the cervical spine Although the further delay entailed by remand is regrettable, current adjudication of the Veteran’s claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). The Veteran contends that he is entitled to service connection for chronic pain syndrome and GERD with chest pain, to include as secondary to service-connected degenerative disease of the cervical spine. As a preliminary matter, the Board observes that this matter was recently remanded to obtain outstanding treatment records from a VA Outpatient Clinic in Harrisburg, dated September 1976 to the present. In April 2020, a Department of Veterans Affairs evidence intake center correspondence indicated that a thorough search of archived records was conducted, and no additional treatment records were located. In addition, the Veteran underwent an additional VA examination of the cervical spine in January 2020. Based upon favorable diagnostic findings, a June 2020 Rating Decision granted service connection for degenerative disease of the cervical spine, effective August 20, 2008. Thereafter, the regional office issued a supplemental statement of the case which acknowledged the grant of service connection for the Veteran’s cervical spine condition. However, there is no indication that the Veteran’s secondary service connection claims, to include as secondary to his now service-connected cervical spine condition were reconsidered. Accordingly, the Board finds that an additional remand in required. Specifically, an addendum medical opinion is necessary to address the Veteran’s claims for service connection for chronic pain syndrome and GERD with chest pain, to include as secondary to his service-connected degenerative disease of the cervical spine. Entitlement to an evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that the current severity of his service-connected PTSD is worse than currently evaluated. He further suggests that his condition impairs his ability to secure and maintain employment. Pursuant to a September 2019 Board remand decision, the Veteran’s claim was remanded for a new VA examination. On examination in January 2020, a current diagnosis of PTSD was noted. Other medical conditions included a possible TBI. The Veteran reportedly suffered a stroke 8 years earlier. thereafter, he reported minor memory loss with worsening symptoms overtime. No formal diagnosis of a TBI was documented in the Veteran’s treatment records. Only one psychiatric diagnosis was identified. Due to the Veteran’s psychiatric diagnosis, his occupational and social impairment was associated with mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, although only during periods of significant stress, or symptoms controlled by medication. During the clinical interview, the Veteran reported that he had not worked in many years. He acknowledged frequent communication with his son, best friend, a VA social worker, and preacher when counseling services were required. To treat his current conditions, he seeks treatment at VA medical facilities. The Veteran endorsed use of oral prescription medications, Zoloft and Trazodone. Although a prior history of excessive drinking due to stress and the death of his sister was noted, the Veteran denied any current use of alcohol. On examination, the Veteran’s current symptoms were listed as a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, chronic sleep impairment, and mild memory loss. Behavioral observations indicated that he was attentive, alert, and oriented. Following the death of his sister and brother-in-law, the Veteran reported thoughts of suicide by jumping from a window. Despite his self-disclosure, the examiner did not believe that the Veteran posed a current risk of harm to himself or others. Following the clinical evaluation, no change in diagnosis was deemed necessary. The examiner suggested that the Veteran’s complaints of panic attacks, irritability, suspiciousness would likely significantly interfere with his ability to work. No additional opinions or comments were offered as due to the occupational impact of the Veteran’s service-connected PTSD. This was despite the Veteran’s reported difficulty remembering instructions or details of work assignments. On review of the record, the Board finds the January 2020 VA examination inadequate. Specifically, the Board notes that the VA examiner documented a current diagnosis of PTSD and a suspicion of a TBI due to a stroke eight years ago. Although a suggestion of a TBI was noted, no formal diagnosis was rendered and the examiner failed to comment on whether the Veteran’s complaints of memory impairment were attributed to a TBI, his history of stroke, or his service-connected PTSD. In addition, the examiner acknowledged that the Veteran’s complaints of panic attacks, irritability, and suspiciousness likely resulted in a significant interference with his ability to work. His reports of difficulty remembering instructions and details of work assignments were also acknowledged. Despite the forgoing, the examiner suggested that the Veteran’s occupational and social impairment resulted in mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. As the noted findings are both contradictory and incomplete, the Board finds that an additional VA opinion is required. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See 38 U.S.C. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As the Veteran’s claim for TDIU depends on the Board’s determinations regarding the above referenced claims, current adjudication of the claim for TDIU would be premature. Accordingly, adjudication of this claim will be deferred until further development of the inextricably intertwined claims is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his chronic pain syndrome. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Then, the examiner should provide an opinion as to whether: A.) It is at least as likely as not (50 percent or greater probability), that the Veteran’s chronic pain syndrome was incurred in, caused by or is otherwise related to active service, to include as secondary to her service-connected degenerative disease of the cervical spine. B.) It is at least as likely as not (50 percent or greater probability), that the Veteran’s chronic pain syndrome is aggravated (worsened beyond the natural progression) by the service-connected degenerative disease of the cervical spine. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his GERD with chest pain. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Then, the examiner should provide an opinion as to whether: A.) It is at least as likely as not (50 percent or greater probability), that the Veteran’s GERD with chest pain was incurred in, caused by or is otherwise related to active service, to include as secondary to her service-connected degenerative disease of the cervical spine. B.) It is at least as likely as not (50 percent or greater probability), that the Veteran’s GERD is aggravated (worsened beyond the natural progression) by the service-connected degenerative disease of the cervical spine. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner must also discuss the functional effects of the Veteran’s service-connected PTSD, and any related residual conditions. The examiner is also specifically requested to comment on whether a diagnosis of a TBI is warranted and if so, whether the Veteran’s complaints of memory deficiencies are attributed to his service-connected PTSD or TBI. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 4. Following completion of the above referenced directives, and any other development it deems to be necessary, the Veteran’s claims to include the inextricably intertwined claims, should be re-adjudicated. If any benefit sought on appeal is not granted, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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