Citation Nr: 21040656 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 10-48 127 DATE: July 6, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder 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 served on active duty in the United States Army from July 1952 to July 1954. The Board remanded the Veteran's claim for an acquired psychiatric condition in a February 2017 decision for further development, and that issue is now back before the Board. Additionally, the Board denied the Veteran's claim for an increased rating for his bilateral hearing loss disability in an August 2018 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (CAVC), and in June 2019 CAVC vacated the August 2018 Board decision insofar as it did not address the Veteran's entitlement to TDIU, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. The Veteran's claim was previously before the Board in January 2020 but was remanded for additional development. As discussed in detail below, the Agency of Original Jurisdiction (AOJ) did not comply with the January 2020 Remand directives. While the Board regrets this additional delay, further information is necessary to comprehensively evaluate the Veteran's claim for entitlement to service for an acquired psychiatric disorder and entitlement to TDIU. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran's claim was previously before the Board in January 2020 but was remanded for additional development. Specifically, the Veteran's claim was remanded to the AOJ to obtain an addendum VA medical opinion regarding the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. The January 2020 remand stated: In proffering their opinions, the [previously obtained VA medical opinions] did not take into account the Veteran's competent lay statements when opining on the Veteran's disabilities nor the lay statement submitted by the Veteran's wife. As such, the VA examiners did not adequately assess whether the Veteran's psychiatric disabilities were related to his active duty service and the Board finds an additional examination is required to determine the etiology of the Veteran's disabilities. The January 2020 Remand directives specifically stated: The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If an examiner is unable to provide any required opinion, he or she should explain why. An addendum medical opinion was obtained and associated with the claims file in February 2020. The February 2020 medical opinion determined it was less likely than not that the Veteran's acquired psychiatric disorder was incurred during or caused by his period of active service. The examiner reasoned that the Veteran's service treatment records were silent for complaints of or treatment for an acquired psychiatric disorder during active service. The examiner further noted that the Veteran's first diagnosis of an acquired psychiatric disorder occurred more than 22 years after his completion of active service. However, the examiner failed to discuss and consider the Veteran's July 2016 lay statement that his symptoms of an acquired psychiatric disorder had existed since completion of his active service in Korea. The examiner also failed to discuss and consider an April 2013 statement from the Veteran's spouse noting changes in the Veteran's behavior after his deployment to Korea. The examiner's failure to consider and discuss the Veteran's, and his spouse's, lay statements is in violation of the January 2020 remand directives. Accordingly, the Board finds there has not been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). An additional VA addendum opinion is necessary to comprehensively evaluate the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to TDIU The issue of entitlement to a TDIU is inextricably intertwined with the issue of service connection for a psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180(1991). Additionally, in his January 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), he stated that he received Social Security payments but did not specify whether they were related to a disability. The matters are REMANDED for the following action: 1. Ascertain if the Veteran is receiving benefits from the Social Security Administration (SSA) for disabilities. If so, attempt to obtain his SSA records. Negative replies should be documented and the Veteran should be notified. 2. Then, return the Veteran's claims file to the examiner who completed the January 2020 addendum opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability began during active service, or is related to an incident of service. The medical opinion should specifically address the Veteran's July 2016 lay statement concerning symptoms existing since his completion of active service in Korea. The opinion should also address the April 2013 statement from the Veteran's spouse noting a change in the Veteran's behavior following his completion of active service in Korea. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. After all completed development, the AOJ should then readjudicate the claims, including the Veteran's claim for entitlement to TDIU. If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.