Citation Nr: 21030687 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-02 433 DATE: May 19, 2021 ORDER The November 2020 Board decision that denied service connection for an acquired psychiatric disorder, a bilateral lower extremity disorder, a bilateral eye disorder, bilateral foot disorder other than service-connected pes planus, and entitlement to a total disability rating based on individual unemployability, is vacated. REMANDED Service connection for an acquired psychiatric disorder is remanded. Service connection for a bilateral lower extremity disorder is remanded. Service connection for a bilateral eye disorder is remanded. Service connection for a bilateral foot disorder other than service-connected pes planus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT In November 2020, the Board issued a decision that denied service connection for an acquired psychiatric disorder, a bilateral lower extremity disorder, a bilateral eye disorder, a bilateral foot disorder other than service-connected pes planus, and entitlement to a TDIU; however, the decision was adjudicated without providing the Veteran due process of law. CONCLUSION OF LAW The criteria for vacatur of the Board's November 10, 2020, decision have been met. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In addition to the issues on appeal, the Board remanded service connection for a bilateral foot and a lumbar spine disorder for further development in May 2018. In an April 2020 rating decision, the RO granted service connection for degenerative arthritis of the spine and bilateral pes planus. This was a full grant of the benefit sought with regard to the back issue. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issue of service connection for a bilateral foot condition to a cold weather injury (previously claimed as fungus on feet) remains on appeal. There has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case regarding the issues on appeal was issued in April 2020. In May 2020, the Veteran's representative requested the Board wait the full 90 days prior to issuing a decision. In correspondence received in July 2020, the representative requested an additional 90 days to submit argument. Although a formal response was not provided to the Veteran and his representative, no further argument or evidence was received prior to the expiration of both 90-day periods. Vacatur In March 2021, the Board received a motion to vacate a November 2020 decision on the grounds that an extension request was pending when the Board issued its decision. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. On October 20, 2020, following the issuance of a May 2020 notice letter advising the Veteran and his representative of certification of the appeal to the Board and of notice of the appeal having been docketed at the Board; VA received a 90-day extension request from the Veteran's representative to submit additional argument. Unfortunately, due to an administrative delay in receiving the motion, the Board issued a decision denying entitlement to service connection for an acquired psychiatric disorder, bilateral lower extremity disorder, bilateral eye disorder, bilateral foot disorder other than service-connected pes planus, and entitlement to a TDIU on November 10, 2020. As the November 2020 Board decision was issued prior to the expiration of the 90-day extension request without notice to the Veteran and his representative, the Veteran was denied due process of law. The requirements of 38 C.F.R. § 20.1000 have been met and vacatur of the November 2020 Board decision is warranted. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder is remanded. 2. Service connection for a bilateral lower extremity disorder is remanded. 3. Service connection for a bilateral eye disorder is remanded. 4. Service connection for a bilateral foot disorder, other than service-connected pes planus, is remanded. The Veteran's private treating psychologist (R.W., PsyD, LMHC, LPCC) indicated that the Veteran has been in receipt of disability benefits from the Social Security Administration (SSA) since 2008 for mood disorder and antisocial behavior. A private psychologist, H.H.G, Ph.D., who evaluated the Veteran for purposes of establishing service connection for an acquired psychiatric disorder and entitlement to TDIU, indicates that the Veteran is in receipt of disability benefits from the SSA for both mental and physical disabilities. VA has a duty to assist claimants in obtaining evidence to substantiate a claim. 38 C.F.R. § 3.159(c). VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159(c)(2). The United States Court of Appeals for the Federal Circuit has specifically held that VA's duty to assist is limited to obtaining relevant SSA records, and relevant records have been defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate" the claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). On remand, the RO should attempt to obtain any relevant records from SSA. In her February 2021 opinion Dr. H.H.G. opined that the Veteran suffers from major depressive disorder that more likely than not began during military service, continues uninterrupted to the present, and is aggravated by his [service-connected] degenerative arthritis of the spine and pes planus. The RO should also obtain an addendum opinion regarding the nature and etiology of the claimed acquired psychiatric disorder as the VA opinion and addendum of record does not currently address secondary service connection. Entitlement to a TDIU is remanded. Entitlement to a TDIU is deferred as there may be outstanding relevant SSA records and the remanded issues above are inextricably intertwined with this issue. The matters are REMANDED for the following action: 1. Obtain relevant federal records from SSA. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed acquired psychiatric disorder and whether it is at least as likely as not onset in, or is otherwise related to, military service. The examiner is also to provide an opinion as to whether the claimed acquired psychiatric disorder is EITHER proximately due to his service-connected bilateral pes planus or degenerative arthritis of the spine OR aggravated beyond its natural progression by service-connected bilateral pes planus or degenerative arthritis of the spine. (Continued on the next page) Note: The examiner is advised that an opinion for both proximate causation and aggravation are required. The examiner must review the claims file and provide a rationale for the opinions rendered. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.