Citation Nr: 21025171 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-38 469A DATE: April 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition, to include as secondary to service-connected asthma, is granted. REMANDED Entitlement to revision of a November 1991 rating decision denying entitlement to service connection for asthma based on clear and unmistakable error (CUE) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric condition is proximately due to his service-connected asthma. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric condition, to include as secondary to service-connected asthma, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1977 to September 1979 and was discharged under honorable conditions. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Board previously remanded this matter in June 2018 and July 2020 decisions for the RO to undertake additional development. In its previous decisions, the Board effectively recharacterized the claim for revision of the November 1991 rating decision denying service connection based on CUE as two separate claims: (1) a petition to reopen a claim for service connection for asthma, and (2) a CUE claim. In the June 2018 decision, the Board reopened and remanded the claim for service connection for asthma, and remanded the claim asserting CUE for adjudication. Additionally, the Board granted a petition to reopen a claim for service connection for an acquired psychiatric condition, which was also remanded for further development. Subsequently, in an April 2020 rating decision, the RO granted service connection for asthma from February 14, 2011 (i.e., the date his petition to reopen was received). However, the RO did not address entitlement to revision of the November 1991 rating decision based on CUE. In a May 2020 supplemental statement of the case (SSOC), the RO denied service connection for an acquired psychiatric condition. In the Board’s July 2020 decision, the Board remanded the CUE claim for the RO to adjudicate the claim in the first instance, as the RO had failed to address whether CUE was present in the November 1991 rating decision in any decision during the appeal period. With respect to the acquired psychiatric condition claim, the Board remanded the claim to obtain an addendum medical opinion that considered both direct and secondary service connection. Following additional development on remand, the RO issued another SSOC in March 2021. The March 2021 SSOC denied entitlement to an acquired psychiatric condition once more and adjudicated the claim for revision of the November 1991 rating decision based on CUE in the first instance. The matters now return to the Board. Service Connection As set forth in the Board’s previous decisions, the Veteran claims that he is entitled to service connection for an acquired psychiatric condition stemming from his service. He has previously been diagnosed with various mental health disorders, including anxiety and anxiety attacks. To that end, the record has reasonably raised the issue of whether service connection for an acquired psychiatric condition is warranted secondary to his service-connected asthma. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, the evidence of record contains ample evidence of a history of anxiety symptoms, such as anxiety attacks. The evidence also suggests that the Veteran’s anxiety symptoms are caused by or otherwise related to the medication used to treat his asthma, Albuterol. In his post-service VA treatment records, for instance, his treating physicians have indicated that his anxiety could be “partially due to excessive use of Albuterol.” February 2011 VA Urgent Care Note; see also July 2013 VA Psychiatry Note (noting that his panic attacks did not occur on days when he did not use Albuterol and hence could have been “at least in part” related to his Albuterol use). Medical opinions were obtained in November 2020, February 2021, and March 2021 in accordance with the Board’s most recent remand. Notably, the VA examiner opined that his other mental health conditions, such as depressive disorder, were not directly related to service or secondary to his service-connected asthma. Relevantly, however, she noted that the Veteran was not having panic attacks prior to or when not using Albuterol, which he began using several years after service. This, she explained, was why he did not report anxiety during service. She went on to say that research has consistently shown that Albuterol’s effects can include nervousness, shakiness, rapid heart rate, and headaches, consistent with anxiety and panic attacks. Ultimately, she opined, his anxiety was at least as likely as not aggravated by his asthma and Albuterol use. Confusingly, however, the November 2020 VA examiner did not respond to the separate question of whether the Veteran’s anxiety was caused by or otherwise related to his service-connected asthma or Albuterol use. In a subsequent March 2021 medical opinion, conversely, she opined that his anxiety was at least as likely as not a result of his asthma and Albuterol use. The examiner’s opinions regarding secondary service connection are somewhat contradictory to the extent that one concludes that his anxiety was aggravated by asthma, while the other states that his anxiety is “a result of” (i.e., caused by) his asthma. Regardless of how the examiner has characterized the relationship between his asthma and his anxiety, she has consistently concluded that his anxiety symptoms did not begin until after he began using Albuterol for asthma. This conclusion is supported by other evidence of record. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that his anxiety disorder is at least as likely as not caused by treatment for service-connected asthma. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, secondary service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND As set forth above, the Board has twice directed the RO to adjudicate the issue of whether revision of the November 1991 rating decision is warranted based on CUE. In response to the Board’s remand directives, however, the RO issued an SSOC, rather than a rating decision, discussing whether revision of the November 1991 rating decision was warranted. This, however, is improper, as the RO should have instead issued a rating decision to address the issue in the first instance. To that end, an SSOC, by its own terms, cannot be used to decide any new issues. See 38 C.F.R. § 19.31(a). This is in violation of long-standing VA policy and relevant regulations governing what issues can be addressed in an SSOC. See id. The Board also notes that the Court has held that the Board can waive the timeliness of an appeal when actions taken by the RO lead an appellant to believe that an issue remains on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, however, the Board cannot adjudicate the claim of entitlement to revision of the November 1991 rating decision on its merits. This is because the RO’s failure to adjudicate this claim initially in a rating decision, as opposed to promulgating an SSOC, precludes the Veteran’s ability at present to disagree with this rating decision by filing a notice of disagreement. This procedural defect (i.e., erroneously issuing an SSOC rather than a rating decision) also does not permit the Board adjudicate the issue of entitlement to revision of the November 1991 rating decision on the merits and waive any timeliness with respect to an appeal. See id. As such, it was an error for the RO to re-certify this appeal to the Board at this juncture. It must thus be remanded for further action. Accordingly, this matter is REMANDED for the following action: Adjudicate the Veteran’s claim for entitlement to revision of the November 1991 rating decision denying service connection for asthma by promulgating a rating decision. A copy of any rating decision on this claim should be sent to the Veteran and his representative and must be included in the claims file. An appropriate length of time should be allowed for response from the Veteran and/or his representative. This claim should not be returned to the Board unless the Veteran subsequently perfects a timely appeal. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.