Citation Nr: 21026436 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 19-00 745 DATE: May 3, 2021 REMANDED Entitlement to an initial compensable rating for a skin condition, characterized as acne keloidalis, is remanded. Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disorder, characterized as major depressive disorder, is remanded. Entitlement to service connection for hypertension 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 March 1995 to April 2000. This matter is on appeal from a January 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in January 2020 when an increased rating for an acquired psychiatric disorder, increased rating for a skin disability, and service connection for hypertension were denied, and entitlement to a TDIU was remanded for further development. The Veteran appealed the January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand (JMR) that vacated the Board's decision and remanded it for further action. 1. Entitlement to an initial compensable rating for a skin condition, characterized as acne keloidalis, is remanded. The Veteran contends that he is entitled to an initial compensable rating for his skin condition. However, the Board finds that an additional examination is necessary to adequately address the severity of the condition. As explained in the December 2020 JMR, the Veteran stated in an April 2017 VA Form 21-4138, Statement in Support of Claim, that his skin condition occasionally swells and causes blisters filled with blood that burst. The Veteran was provided with a VA examination for the skin condition in January 2017, but the examination report does not discuss this reported history of bleeding blisters. Once VA undertakes the effort to provide an examination for a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board finds that an additional examination must be provided to adequately address the severity of the Veteran's skin condition. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disorder, characterized as major depressive disorder, is remanded. The Veteran contends that he is entitled to an initial rating in excess of 30 percent for an acquired psychiatric disorder. However, the Board finds that an additional examination is necessary to adequately address the severity of the disability. As explained in the December 2020 JMR, the Veteran has endorsed suicidal ideation without an intent or plan to act on such thoughts, and this symptom is contemplated in the criteria for an increased rating under the general rating formula for mental disorders. The Veteran was provided with VA examinations in January 2017 and November 2020 in which the examiners noted no present ideation, and the November 2020 examiner merely noted that he had reported past ideation. However, the examiners did not elicit critical information regarding the severity, frequency, duration, or precipitating and alleviating factors, nor the extent of functional impairment associated with these episodes. The examiner is not expected to discuss every episode in detail but should address the functional impairment associated with this symptomatology so that the Board can make a fully informed decision regarding the severity of the disability picture. See, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, the general rating formula contemplates varying degrees of severity for short- and long-term memory loss, ranging from simply forgetting to complete tasks, to forgetting one's own name or occupation. 38 C.F.R. § 4.130. In this case, December 2015 private treatment records note that the Veteran's ability to carry out tasks was "very limited" due to short term memory loss, and January 2016 private treatment records note that the Veteran was "off work for his new onset of memory loss." However, during the November 2020 VA examination, the examiner noted no more than mild memory loss. Further, the January 2017 examiner noted that the Veteran performed within normal limits during the examination with remote memory grossly intact and fair working memory. On remand, the examiner is asked to address the favorable evidence which reflects a greater degree of memory impairment so that the Board can make a fully informed decision regarding the severity, frequency, and duration of the Veteran's symptoms. 3. Entitlement to service connection for hypertension is remanded. The Veteran contends that he is entitled to service connection for hypertension. However, the Board finds that an additional opinion must be obtained to determine the etiology of the Veteran's condition. As explained in the December 2020 JMR, the Veteran was provided with a VA examination in January 2017 in which the examiner provided a negative nexus opinion and stated that service treatment records were negative for a diagnosis or treatment of hypertension during active duty service. However, in this case, February 2000 service treatment records note "[Axis] III hypertension." As the rationale for the January 2017 opinion is based upon an inaccurate factual premise, an additional opinion must be obtained to determine the etiology of the Veteran's disability. See Reonal v. Brown, 5. Vet. App. 458, 461 (1993). Additionally, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service from active duty or were noted in service with continuity of the same symptomatology after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the examiner is asked to provide an opinion as to whether service connection is warranted on a presumptive basis. Further, as discussed in the December 2020 JMR, the examiner must address whether the Veteran's hypertension is secondary to his service-connected acquired psychiatric disorder. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b). Thus, the examiner is also asked to provide an opinion as to whether service connection is warranted on a secondary basis. 4. Entitlement to a TDIU is remanded. The Veteran contends that he is entitled to a total disability rating based on individual unemployability (TDIU). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In this case, the Veteran does not currently meet the percentage requirements for a schedular TDIU. Thus, the matters being remanded could affect any determination regarding entitlement to TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, the claim seeking a TDIU is inextricably intertwined with the issues being remanded, and these issues must be adjudicated before a decision can be reached on the Veteran's claim for a TDIU. The RO is therefore asked to complete the above requested development and then adjudicate the Veteran's claim for a TDIU. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2020 to the present. 2. After completing the development in item 1, schedule the Veteran for an examination (including via telehealth interview, if an in-person examination is not feasible) with an appropriate clinician to determine the current severity of his service-connected skin condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Specifically, the examiner is asked to provide a full description of the bleeding blisters reported by the Veteran. 3. After completing the development in item 1, schedule the Veteran for an examination (including via telehealth interview, if an in-person examination is not feasible) with an appropriate clinician to determine the severity of his service-connected acquired psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Specifically, the examiner is asked to provide an opinion regarding the severity, frequency, and duration of the Veteran's symptoms, to include suicidal ideation and memory loss. 4. After completing the development in item 1, schedule an examination (including via telehealth interview, if an in-person examination is not feasible) with an appropriate clinician for the Veteran's claim for service connection for hypertension. The reviewing clinician should be requested to provide an opinion (based on a review of the record) to answer the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension manifested to a compensable degree during service or within a year of separation therefrom? The examiner is advised that a compensable evaluation is warranted for diastolic pressure predominantly 100 or more; or, systolic pressure predominantly 160 or more; or, a history of diastolic pressure of 100 or more which requires continuous medication for control. (b.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was noted in service with continuity of symptomatology thereafter? (c.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was incurred in service or is otherwise related to an in-service event, injury, or disease? (d.) If not, is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is proximately due to or aggravated (i.e., any worsening beyond its natural progression) by a service-connected disability, to include the acquired psychiatric disorder? Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. (e.) If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical (Continued on the next page) community at large and not those of the particular examiner. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.