Citation Nr: 21024029 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-11 729 DATE: April 21, 2021 REMANDED Entitlement to service connection for a chronic heart disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active service from July 1965 to January 1969, to include service in the Republic of Vietnam. This case has a long procedural history. Most recently, in December 2020, the United States Court of Appeals for Veterans Claims (Court) on a Joint Motion for Remand (JMR) by the Veteran and the Department of Veterans Affairs (VA) (the parties), vacated the January 2020 Board of Veterans’ Appeals (Board) decision that addressed a VA Regional Office (RO) June 2015 rating decision. The January 2020 Board decision denied entitlement to service connection for a chronic heart disorder and entitlement to service connection for an acquired psychiatric disorder. The Court remanded the matter. The parties to the JMR agreed, and the December 2020 Court decision adopted the parties’ position, that the Board erred by failing to address arguments regarding a Privacy Request raised by the Veteran’s representative in a January 2020 letter. The Board is required to address all arguments asserted in and raised by the record. Robinson v. Peake, 21 Vet. App. 545, 552 2 (2008), aff’d sub. nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). VA regulations provide that “any individual upon request may gain access to his or her record or to any information pertaining to him or her which is contained in any system of records maintained by the Department of Veterans Affairs.” 38 C.F.R. § 1.577(a). Furthermore, “[w]hen a Privacy Act request under § 1.577 of this chapter by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on the individuals appeal.” 38 C.F.R. § 20.1200. In April 2019, Appellant’s representative submitted a “Privacy Act” request to the Board asking for “a complete copy of Appellant’s claims file” be sent to his office and that the Board hold the record open for 90 days from the date that the claims file was mailed to him. In June 2019, the Board placed Appellant’s appeal on its docket. In October 2019, the Board issued a letter stating that it was providing the requested records in an enclosed CD to the address that Appellant’s representative requested, and it granted the requested the extension of time. However, on January 17, 2020, the Appellant’s representative submitted a letter indicating that he had not received a complete copy of Appellant’s claims file and requested that the record be held open for an additional 90 days. The Board, however, issued its decision on January 17, 2020, without addressing the allegation of non-receipt raised by Appellant’s representative in the January 17, 2020 letter. See Urquhart v. Nicholson, 30 Vet. App. 241, 244 (2005) (holding that “days are indivisible; procedural events occurring on the same day are simultaneous; and we will not engage in factfinding to determine which event occurred first) (citing Losh v. Brown, 6 Vet. App. 87, 89 (1993). Although these arguments were raised by the Appellant, the Board failed to address them. See Robinson at 552. Therefore, the Court found remand of this matter was warranted for the Board to address the argument concerning the allegation of non-receipt raised in the January 17, 2020 letter. The Board notes, in February 2020, VA provided the Veteran’s entire claims file to the Veteran’s representative on a CD in response to the January 17, 2020 Privacy Request. In the January 2021 Appellant Brief, the Veteran’s representative acknowledges responding in advance of the “90-day letter” the Board issued following the Court remand. 1. Entitlement to service connection for a chronic heart disorder In the January 2021 Appellant Brief, the Veteran’s representative challenges the competency of the July 2018 examiner because she was a nurse practitioner and lacked the expertise in cardiology or environmental exposure medicine. Specifically, the July 2018 examiner opined that the Veteran did not have a current disability of either ischemic heart disease or other chronic heart disorder. The Veteran’s representative seeks a copy of the July 2018 examiner’s curriculum vitae and any other qualifications she may possess for review. The Veteran’s representative also asserted that the examiner failed to discuss the Veteran’s conceded herbicide exposure in her opinions. Once the issue of the competence of a VA examiner has been raised (either by the record or expressly by a veteran), the burden shifts to VA to establish the examiner’s competence. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Accordingly, the Board finds that a remand is required in order for the RO to obtain the curriculum vitae and other qualifications of the July 2018 VA examiner to assist in determining whether the VA examiner was qualified to issue her medical opinions. Once obtained, the RO must provide a copy of the examiner’s curriculum vitae and other qualifications to the Veteran and his representative. If such evidence cannot be obtained or if such evidence determines the VA examiner was not qualified to issue her medical opinions, the RO should obtain an addendum opinion from an examiner with expertise in cardiology, as well as that examiner’s curriculum vitae or resume. 2. Entitlement to service connection for an acquired psychiatric disorder In the January 2021 Appellant Brief, the Veteran’s representative raises for the first time that the Veteran’s acquired psychiatric disorder is secondary to his service-connected bilateral hearing loss and tinnitus. He contends medical literature suggests that “[r]esearchers from the National Institute on Deafness and Other Communication Disorders (NIDCI), part of the National Institutes of Health, have found a strong association between hearing impairment and depression among U.S. adults of all ages, particularly in women.” See January 2021 Appellant Brief at 9. Service connection may be considered on a secondary basis under 38 C.F.R. § 3.310. The three elements that must be met to grant secondary service connection are: a current disability that is not already service-connected; at least one service-connected disability; and evidence that the non-service-connected disability is either: (a) proximately due to or the result of a service-connected disability, or (b) aggravated beyond its natural progression by a service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995). Currently, the Veteran is service-connected for bilateral hearing loss and tinnitus. At an April 2019 VA examination, the Veteran was diagnosed as having a depressive mood not otherwise specified, due to life circumstances not related to military service. There is no opinion as whether the Veteran’s depressive mood is either proximately due to or the result of his service-connected bilateral hearing loss or service-connected tinnitus, or aggravated beyond its natural progression by his service-connected bilateral hearing loss or service-connected tinnitus. Accordingly, the Board finds this claim must be remanded to obtain medical opinions to address the Veteran’s new contention. The matters are REMANDED for the following action: 1. Obtain the curriculum vitae and other qualifications from the July 2018 VA examiner who issued medical opinions regarding the Veteran’s chronic heart disorder. 2. Provide a copy of the of the curriculum vitae and other qualifications of the July 2018 VA examiner to the Veteran and his representative. 3. ONLY IF the curriculum vitae and other qualifications from the July 2018 VA examiner cannot be obtained, or if such evidence determines the VA examiner was not qualified to issue the medical opinions, then a new addendum opinion must be obtained from an examiner with expertise in cardiology. Provide the clinician the Veteran’s complete claims file, including the December 2020 Court JMR and this Board Remand order. The examination report should reflect that such review was accomplished. 4. The clinician should interview and examine the Veteran. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 5. Based on review of the record and examination of the Veteran, the clinician is requested to: a. Identify and describe each current diagnosis, if any, of the Veteran’s chronic heart disorder. b. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current chronic heart disorder was incurred in or is otherwise etiologically related to his active duty service. 6. The clinician must provide detailed rationale for all opinions proffered. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the aforesaid inquiries cannot be provided without resorting to speculation, the clinician is requested to provide an explanation as to why this is so and to identify what additional development, if any, would permit the requested opinion to be rendered. 7. Schedule the Veteran for an in-person VA examination with an appropriated clinician for an addendum opinion to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. 8. Provide the clinician the Veteran’s complete claims file, including the December 2020 Court JMR and this Board Remand order, for review. The examination report should reflect that such review was accomplished. 9. The clinician should interview and examine the Veteran. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries. The clinician should consider the lay statements made by the Veteran during the April 2015 and March 2019 VA examinations and that the Veteran’s reports must be considered in formulating the requested opinions. 10. Based on review of the record and examination of the Veteran, the clinician is requested to: a. Identify and describe each current diagnosis, if any, of the Veteran’s acquired psychiatric disorder. b. For each diagnosed acquired psychiatric disorder, opine whether such diagnosis is at least as likely as not (50 percent probability or greater) caused by or is otherwise attributable to the Veteran’s service-connected bilateral hearing loss or service-connected tinnitus. c. For each diagnosed acquired psychiatric disorder, opine whether such diagnosis is at least as likely as not (50 percent probability or greater) proximately due to or aggravated by any of the Veteran’s service-connected bilateral hearing loss or service-connected tinnitus beyond its natural progression. The term “aggravation” in the above context refers to “any incremental increase in disability - any additional impairment of earning capacity - in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence.” The clinician should address the medical literature referenced on page 9 of the Appellant’s Brief regarding the suggestion by researchers from the National Institute on Deafness and Other Communication Disorders about hearing impairment and depression. 11. The clinician must provide detailed rationale for all opinions proffered. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the aforesaid inquiries cannot be provided without resorting to speculation, the clinician is requested to provide an explanation as to why this is so and to identify what additional development, if any, would permit the requested opinion to be rendered. 12. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claims. (continued on the next page) 13. If any benefit sought on appeal remains denied, a Supplemental Summary of the Case (SSOC) should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal. 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.