Citation Nr: 21032697 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-08 772 DATE: May 27, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD), to include major neuro-cognitive disorder and major depressive disorder (MDD), is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disability, include coronary artery disease, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1945 to August 1946. He passed away in August 2019, and the appellant is his surviving spouse. As noted in the previous Board decision, pursuant to the appellant's September 2019 request she was substituted in the place of Veteran in pursuit of those appeals listed above that were outstanding at the time of his passing. To that end, these matters were last before the Board in January 2021, whereupon they were remanded to the Agency of Original Jurisdiction for further development of the record. Following the issuance of a March 2021 supplemental statement of the case continuing the denial of all service connection claim, the case was returned to the Board for its adjudication. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board in its prior remand instructions directed the AOJ to secure an opinion as to the likely etiology of the Veteran's acquired psychiatric disorder, which was identified variously during the appeal period as major depressive disorder and a major neuro-cognitive disorder. The Board highlighted that the Veteran was diagnosed with major depressive disorder in a June 2014 VA examination, and noted that although that diagnosis was later dismissed in subsequent VA examinations dated in November 2016 and June 2019, the fact that it was diagnosed at all during the appeal period raised the possibility of granting service-connection for the acquired psychiatric disorder characterized as either major depressive disorder or a major neuro-cognitive disorder. In a March 2021 opinion, the examiner noted that there was no diagnosis of an active psychiatric disorder at the time of the Veteran's passing. While this finding was not apparently dispositive, this determination appears to discount the fact that the Veteran was diagnosed with an active psychiatric disorder during the pendency of the appeal, thus allowing for the possibility of entitlement to service connection for that psychiatric disorder. The Board cannot rely on this opinion based as it is on an inaccurate characterization of the medical record and its relation to the legal requirements for a grant of service connection. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, in opining that it was less likely than not that any acquired psychiatric disorder was secondary to a service-connected disability, the examiner stated merely that the Veteran was not diagnosed with depression until 2014 and his depression was never associated with his hearing loss and tinnitus during his lifetime. This rationale does not address whether any acquired psychiatric disorder was aggravated by a service-connected disability. As such, on remand, a new opinion must be obtained which appropriately considers the Veteran's major depressive diagnosis in the context of his medical history and addresses whether his acquired psychiatric disorder was either caused or aggravated by a service-connected disability. 2. Entitlement to service connection for hypertension and a heart disability are remanded. For reasons detailed in the Board's prior remands, the evidence of record raises the suggestion that the hypertension and heart disability claims are both secondary to his claimed acquired psychiatric disorder. As such, these claims are inextricably intertwined with the service connection claim for an acquired psychiatric disorder and must be remanded along with that claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). To that end, the Board notes that there is no opinion of record addressing the theory of entitlement to service connection for either hypertension or a heart disability on a secondary basis; as such, the Board is requesting that an opinion responsive to this theory be secured on remand. 3. Entitlement to TDIU is remanded. The Board remanded the TDIU claim to the AOJ in its January 2021 decision in order to have the question of extraschedular entitlement be referred to the Director of Compensation and Pension services for a determination as to whether TDIU was warranted. In a March 2021 correspondence, the Director recommended that TDIU on an extraschedular basis be denied. While this memorandum is instructive, ultimately the Board cannot rely on it entirely in light of the unresolved service connection claims that are presently being remanded by Board. As such, the issue of entitlement to TDIU is inextricably intertwined with these service connection claims and must be remanded as well. Harris, Id. The matters are REMANDED for the following action: Provide the claims file to the examiner who set forth the March 2021 etiology opinion, or to another qualified medical professional if that individual is not available, in order to elicit an addendum opinion regarding the likely etiology of the claimed acquired psychiatric disorder as well as the claimed hypertension and heart disability. The entire claims file, including this REMAND, must be made available to the chosen examiner, and that individual must indicate review of the claims file prior to setting forth any opinion. With regards to the acquired psychiatric disorder, the chosen examiner must set forth an opinion as to whether it is it at least as likely as not (a 50 percent probability or higher) that an acquired psychiatric disorder, to specifically include the diagnosed major depressive disorder, had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that the diagnosed acquired psychiatric disorder was caused or aggravated by one or more service-connected disabilities (as listed in a July 2020 rating decision), to specifically include tinnitus. The examiner must discuss the possibility that the acquired psychiatric disorder is attributable to each service-connected disability, to include whether the disorder was aggravated by a service-connected disability (defined as any increase in disability). If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the acquired psychiatric disorder, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. Similarly, with regard to the hypertension and heart disability, the chosen examiner must set forth an opinion as to whether it is it at least as likely as not (a 50 percent probability or higher) that the hypertension and/or the heart disability had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that the hypertension and/or the heart disability was caused or aggravated by one or more service-connected disabilities (as listed in a July 2020 rating decision) or the acquired psychiatric disorder, regardless of the outcome of any other opinion as to the etiology of the acquired psychiatric disorder. The examiner must discuss the possibility that either condition is attributable to each service-connected disability as well as the acquired psychiatric disorder, to include whether the condition at issue was aggravated by a service-connected disability or the acquired psychiatric disorder (defined as any increase in disability). If the opinion is that a service-connected disability, a combination of service-connected disabilities, or the acquired psychiatric disorder aggravated either the hypertension or the heart disability, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. (Continued on the next page) All provided opinions must be supported by a complete rationale that considers and discusses both the lay and medical evidence of record. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.