Citation Nr: 21030198 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 08-32 942 DATE: May 18, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had honorable active service with the United States Army from May 1975 to June 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 and again in January 2021, these matters were remanded by the Board for development including a VA medical opinion. In January 2021, the Veteran was afforded a new VA examination. Then in February 2021 a supplemental statement of the case (SSOC), was issued before the claims were returned to the Board. The claim seeking entitlement to a TDIU is remanded as inextricably intertwined with the service connection claim, as discussed below. 1. Entitlement to service connection for an acquired psychiatric disability is remanded. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Board finds that the January 2021 VA examination is inadequate on its face for VA purposes. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd 1039, 1043-44 (Fed. Cir. 1994). Specifically, the examiner opined that the Veteran did not have a mental condition at the time of the January 2021 VA examination. The examiner stated that since there was no evidence of a mental illness at the time of the examination, no opinion was provided as to service connection. However, a current disability can be established at any time during the claim period, even if the disability resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the examiner must consider the evidence as a whole during the relevant period. The Board notes that the Veteran has treatment for depression with the VA within the relevant period of the claim. For example, in April 2013, the VA provider stated that the Veteran had depression and medication was recommended. See CAPRI received April 2013. Therefore, the Board finds that a remand is required to obtain a new medical opinion. 2. Entitlement to TDIU is remanded. The Veteran's claim for TDIU is inextricably intertwined with his service connection claim for an acquired psychiatric disorder. In the January 2019 and January 2021 Board decisions, the claim of entitlement to TDIU was raised as part and parcel with the increased rating claims adjudicated in that decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Currently, the Veteran has a total combined rating of 20 percent prior to April 2, 2008, 40 percent from April 2, 2008 to May 14, 2013, and 50 percent since May 15, 2013. While his combined ratings do not presently satisfy the criteria for schedular TDIU, a remand is still required. 38 C.F.R. § 4.16(a). Since the Veteran is seeking entitlement to service connection for an acquired psychiatric disability, and since this other claim is being remanded for additional evidentiary development, the outcome of the Veteran's service connection claim could impact whether the Veteran's service-connected disabilities meet the schedular TDIU threshold set forth in 38 C.F.R. § 4.16(a). Therefore, this TDIU matter is inextricably intertwined with the service connection claim being remanded, and adjudication must be deferred pending completion of the proposed development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Update all VA treatment records as deemed necessary. 2. Then forward the record and a copy of this Remand to an appropriate VA clinician for an addendum opinion addressing the etiology of the Veteran's acquired psychiatric disorder. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should address the following inquiries: (a.) List the acquired mental diagnoses the Veteran has within the period of his claim. Including any diagnoses made during VA examinations. (b.) Is it at least as likely as not (50 percent probability or greater) that any of the Veteran's acquired mental diagnoses (if any) were either: i. Caused by the service-connected knee or back disabilities, or ii. Aggravated by (i.e., worsened beyond the normal progression of the disease) the Veteran's service-connected knee or back disabilities? 3. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on the next page) 4. Then the RO must adjudicate the Veteran's pending TDIU claim subsequent to the other claim in remand status. 5. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.