Citation Nr: 21040823 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-12 335 DATE: July 7, 2021 REMANDED Entitlement to a disability rating higher than 60 percent for thrombophlebitis of the right lower extremity is remanded. Entitlement to service connection claim for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Appellant testified before the undersigned Veterans Law Judge in an October 2019 video conference hearing. A transcript of that hearing has been associated with the file. In January 2020, the Board denied a rating in excess of 60 percent for thrombophlebitis of the right lower extremity, service connection for psychiatric disorder, and entitlement to a TDIU. In January 2021 the Court granted the January 2021 Joint Motion for Partial Remand (JMPR) and vacated the January 2020 Board decision to the extent it denied the increased rating claim for thrombophlebitis of the right lower extremity, the service connection claim for psychiatric disorder, and the claim for TDIU. The case has been returned to the Board for compliance with the terms of the JMPR. Thrombophlebitis of the right lower extremity In the JMPR the parties agreed that the Board failed to provide discussion of any evidence of record dated after May 2014 when denying a rating in excess of 60 percent for thrombophlebitis of the right lower extremity. Explicitly, the Board did not address the favorable evidence of record and assess whether it suggested whether the Veteran had board-like edema at any time during the appeal period. In the JMPR, the parties listed the favorable evidence as two VA medical treatment records describing pitting edema as well as the Appellant's testimony wherein she described the Veteran's right lower extremity as being swollen and painful with symptoms so severe that it caused him to miss nearly 100 days of work. Given the terms of the JMPR the Board finds that a medical opinion that assesses the level of severity of the Veteran's thrombophlebitis of the right lower extremity prior to his death would be helpful. Psychiatric disorder The parties also agreed that the Board erred in denying the service connection claim for psychiatric disorder in that it relied on an inadequate medical opinion when denying the claim. Specifically, the Board did not consider the May 2015 VA mental health treatment record that described a worsening in symptoms and the parties agreed that the Board should obtain a medical opinion that considers this May 2015 treatment record. As such, a remand is required in order to obtain an adequate medical opinion regarding the Veteran's psychiatric disorder. TDIU The parties agreed that the Board needs to readdress the evidence regarding the fact that the Veteran ceased working several months prior to this death and that the TDIU claim is inextricably intertwined with the issues of service connection for psychiatric disorder and the increased rating claim for thrombophlebitis of the right lower extremity. As the TDIU claim is inextricably intertwined with the issues being remanded, the TDIU claim will also be remanded. Cause of death The Board remanded the claim for service connection for the cause of the Veteran's death twicein January 2020 and May 2020. The Board previously found the February 2020 VA opinion to be inadequate. Unfortunately, a review of the August 2020 VA opinions, the September 2020 VA statement, and the October 2020 VA opinion illustrates that the remand directives have not been substantially complied with and therefore another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). First, the August 2020 VA opinions did not provide adequate rationale to support the conclusions reached. The rationale is conclusory and relies on lack of evidence. The September 2020 VA statement simply acknowledges that opinions were already provided in August and that opinions regarding the mental health part have been requested. The October 2020 VA opinion concludes that there is no evidence of a formal diagnosis of any mental health condition to include alcohol use disorder. However, this examiner did not take into account the May 2015 VA mental health treatment record referenced above. Also, of note, neither examiner complied with the directive that required the examiner to document all the medication the Veteran was prescribed and to specifically comment as to whether the Veteran was prescribed any anticoagulants. As such, an additional remand is needed to secure adequate medical opinions. Also, the directives required that efforts be made obtain a list of medications the Veteran was taking to treat his service-connected thrombophlebitis of the right lower extremity, to include any anticoagulants. A review of the record shows that no development was done in order to obtain this list of medications. Lastly, the Appellant appears to have raised an additional theory of entitlement. In a September 2020 report of contact, the Appellant stated that the "IVP" filter that was placed in the Veteran played a role in his death. She noted that the company that made the filter was sued for malpractice. Looking at the medical records and a reputable website, it appears that it should read as IVC and not IVP. IVC refers to Inferior Vena Cava filter placement. See https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/inferior-vena-cava-ivc-filter-placement#:~:text=The%20IVC%20filter%20is%20placed,is%20sent%20with%20the%20catheter. As such, the Board will request an opinion regarding the IVC filter. The matters are REMANDED for the following action: 1. Invite the Appellant to submit any additional evidence she would like considered in connection with these claims. Specifically, request that she provide a list of medications the Veteran was taking to treat his service-connected thrombophlebitis of the right lower extremity, to include any anticoagulants. These requests should be documented and made part of the file. 2. The Agency of Original Jurisdiction (AOJ) should request opinions as to the cause of the Veteran's death from appropriate clinicians, one from a specialist in vascular disorders and the other from a mental health specialist. The electronic claims file must be sent to the clinicians for review. If a list of medications has been obtained, this list must be presented to the clinicians. 3. The vascular examiner is encouraged to contact the Appellant if he/she feels the Appellant can assist him/her in providing detailed, adequate opinions. Following a thorough review of the file, to include the January 2020 remand, the May 2020 remand and this remand, the vascular disorder specialist should address the following questions: (a.) Whether it is as least as likely as not (50 percent probability or more) that the Veteran's service-connected thrombophlebitis of the right lower extremity contributed substantially or materially to his death. (b.) Whether it is as least as likely as not (50 percent probability or more) that the medication(s) the Veteran took to treat his service-connected thrombophlebitis of the right lower extremity caused his liver cancer, cirrhosis, or acute renal failure. After a thorough review of the file the examiner is asked document all the medication the Veteran was prescribed and to specifically comment as to whether the Veteran was prescribed any anticoagulants. (c.) Whether it is as least as likely as not (50 percent probability or more) that the Inferior Vena Cava (IVC) filter placed in the Veteran, as a result of treating his service-connected thrombophlebitis of the right lower extremity, caused his liver cancer, cirrhosis, or acute renal failure. (d.) Would the liver cancer, cirrhosis, or acute renal failure not have occurred but for the alcohol abuse disorder? (e.) The examiner is requested to opine as to the level of severity of the Veteran's thrombophlebitis of the right lower extremity prior to his death, to include consideration as to whether he had massive board-like edema at any time (looking a year prior to the filing date of the increased rating claim to the date of Veteran's death: from July 2014 to June 2015). Specifically, when addressing the level of severity, the examiner must note and comment on the following: 1. A May 2015 VA treatment record showing 3+ pitting edema from ankles to mid thighs bilaterally and a June 2015 VA illustrating 4+ pitting edema up to the waist (VBMS, document labeled CAPRI, receipt date August 20, 2015, pgs. 87 and 265 of 387). 2. The Hearing Transcript, where the Appellant testified that the Veteran's right lower extremity was swollen and painful every day, and he had such trouble walking that he missed 98 days of work (VBMS, document labeled Hearing Transcript, receipt date October 24, 2019, pgs. 3-5 of 13). The examiner is asked to provide a complete rationale for all opinions offered. 3. The mental health examiner is encouraged to contact the Appellant if he/she feels the Appellant can assist him/her in providing a detailed, adequate opinions. Following a thorough review of the file, to include the January 2020 remand, the May 2020 remand and this remand, the mental health specialist should address the following questions: (a.) Whether there is clear medical evidence establishing that the Veteran had a competent diagnosis of a psychiatric disorder at any time during his lifetime. (b.) For any psychiatric disorder diagnosed, the examiner should enter an opinion as to whether it is at least as likely as not that any such disorder had its onset in service; or is otherwise related to service, and if PTSD is diagnosed, the stressor/s upon which the disorder is based should be clearly identified. (c.) Whether there is clear medical evidence establishing that the Veteran's alcohol abuse disorder was caused by his attempts to alleviate his symptoms related to his service-connected thrombophlebitis of the right lower extremity. (d.) If the Veteran's alcohol abuse disorder is found to be secondary to his service-connected thrombophlebitis of the right lower extremity, the examiner is asked to opine as to whether the alcohol abuse disorder was a substantial and material factor in causing his liver cancer, cirrhosis, or acute renal failure. (e.) Specifically, the examiner must note and comment on the following: 1. A May 2015 VA mental health crisis intervention note illustrating communication with the Appellant wherein she described the Veteran as talking to a man who was not there, referring to a dog that was licking him when there was no dog present, how he attempted suicide by firearm six months prior, and how she described a worsening of symptoms of depression (VBMS, document labeled CAPRI, receipt date August 20, 2015, pgs. 300 to 301 of 387). The examiner is asked to provide a complete rationale for all opinions offered. 4. The AOJ should ensure that the examiners' opinions conform with the remand directives. 5. Re-adjudicate the TDIU claim. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.