Citation Nr: 22017342 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 20-22 029 DATE: March 24, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to a total disability rating based on individual employability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army National Guard from July to November 1979, with additional service in the Army National Guard and Reserve. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. 1. Entitlement to Service Connection for a Psychiatric Disability, a Cervical Spine Disability, a Lumbar Disability, and a Bilateral Hip Disability When VA undertakes to provide an examination for a claim for service connection, even if not statutorily obliged to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). In order to be adequate, medical opinions must support their conclusions with an analysis or rationale the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has already remanded this case twice: In May 2021, to seek VA examinations and medical nexus opinions in the first instance for the Veteran's service connection claims, and again in September 2021, on the grounds that the medical nexus opinions obtained (dated May and June 2021) were inadequate. The Board noted that the opinions obtained in response to the May 2021 remand failed to consider whether the Veteran's claimed conditions were related to periods of active or inactive duty training and improperly based their negative conclusions on the absence of medical evidence without discussing the Veteran's competent lay statements reporting in-service injuries or events he claimed were related to his present disabilities. In addition, the psychiatric nexus opinion did not address the Veteran's contention that his psychiatric condition was secondary to his service-connected hearing loss and tinnitus. Following the September 2021 Board remand, the Veteran's file was returned to the same examiner who rendered the June 2021 neck, back, and hip opinions. While the examiner did acknowledge the Board's concerns, he made no substantial change to his conclusions or rationales in response, mostly reiterating and expanding upon his June 2021 opinions. For instance, a November 2021 VA back and hip medical nexus opinion states that the Veteran's current disabilities are not related to his active duty service because his allegations "are inconsistent with facts seen in his medical records . . . and in years thereafter. . . . Allegations have no evidence in the medical records to be sustained." In other words, the examiner found that the Veteran's reports were not credible because the medical records were silent. This is directly contrary to the Board's September 2021 remand directives and also exceeds the role and competence of the medical examiner. See Delrio v. Wilkie, 32 Vet. App. 232, 242 (2019). The role and competence of medical examiners is limited to providing VA adjudicators, including the Board, with "the medical information and analysis necessary to decide a claim." It is the role of the Board, not medical examiners, "to make the findings of fact and law necessary to decide a claimant's entitlement to disability benefits." As for the Veteran's psychiatric claim, his file was forwarded to a new examiner, who provided three consecutive opinions as the RO returned the file to him upon finding problems with the first two. The opinions are difficult to parse, but in aggregate seem to conclude that the Veteran's psychiatric disability, including mood disorder and depression, is entirely caused by his alcohol use disorder (at least before the Veteran entered sustained remission in 2018), which itself is a result of his own willful misconduct. Although the examiner did respond to the Boards' direction to address the Veteran's contention that his psychiatric condition was secondary to his service-connected hearing loss and tinnitus, his response is, unfortunately, inadequate. The examiner stated that neither alcohol use disorder nor mood or depressive disorder were related to hearing loss and tinnitus because: 1) the respective conditions were "in different time frames, different etiology, different pathophysiology, and different anatomical system, [sic] no relation with the other," and 2) "the service connected conditions [hearing loss and tinnitus] preceded more than 30 years, the Veteran's neuropsychiatric condition. . . ." The examiner's first reason is contradicted by the conclusion of an August 2019 private psychiatric opinion, which noted that changes in mood and symptoms of depression are common with hearing loss and tinnitus. The examiner did not address or rebut this assertion, stating only that he could not evaluate the opinion, since the August 2019 examiner had different information than he had, and that the August 2019 opinion did not take into account the Veteran's alcohol use. The examiner's second reason seems to assume that: 1) the Veteran's hearing loss and tinnitus had their onset during his active-duty service in 1979, and that 2) a condition beginning more than thirty years ago could not cause or aggravate a condition in the present. Both of these assumptions are false. A September 2015 VA audiological examination indicates that the Veteran's hearing loss had its onset during his National Guard and Reserve service in the 2000s. Moreover, if the Veteran's hearing loss and tinnitus persisted from that time to the present, there is no reason they could not have caused or aggravated a present condition like the Veteran's psychiatric disability. For all of these reasons, the Board finds that the VA medical nexus opinions (dated October, November, and December 2021) obtained in response to the Board's September 2021 remand are inadequate. Therefore, another remand is necessary to provide the Veteran adequate VA medical nexus opinions in support of his claims. 2. Entitlement to a TDIU The Veteran contends that the disabilities on appeal render him unable to secure substantially gainful employment. Thus, the matters being remanded could affect any determination regarding entitlement to a TDIU. See Parker v. Brown,7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the claim seeking a TDIU is inextricably intertwined with the remanded claims for service connection, and these issues must be adjudicated before a decision can be reached on the Veteran's claim for a TDIU. The RO is therefore asked to complete the above requested development and then adjudicate the Veteran's claim for a TDIU. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Verify all dates of active duty for training and inactive duty for training and document the dates in a memorandum for the record. 3. After completing the development outlined in Items 1. and 2., schedule the Veteran for VA examinations in support of his claims for service connection for an acquired psychiatric disability, a cervical spine disability, a lumbar spine disability, and a bilateral hip disability. THE EXAMINATIONS MUST BE SCHEDULED WITH EXAMINERS WHO HAVE NOT YET PARTICIPATED IN THIS CASE. Please be advised that non-compliance with this directive will result in a further remand per Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon thorough review of the claims file (and physical examination of the Veteran ONLY IF INDICATED), the examiners should respond to the following: (a.) Is it at least as likely as not that the Veteran's acquired psychiatric disability, to include alcohol use disorder, mood disorder, and major or unspecified depressive disorder, had its onset in or is otherwise related to his active-duty service? In formulating this opinion, the examiner must explicitly address the Veteran's contentions that his current psychiatric disability is related to in-service episodes in 2002 and 2008 when he became depressed after being prevented from deploying due to health problems and during training for duty at Guantanamo Bay Detention Camp, respectively. (b.) Is it at least as likely as not that the Veteran's acquired psychiatric disability, to include alcohol use disorder, mood disorder, and major or unspecified depressive disorder, was either 1) caused or 2) aggravated beyond its natural progression by the Veteran's service-connected hearing loss or tinnitus? (c.) Is it at least as likely as not the Veteran's current disabilities of the cervical spine, lumbar spine, and bilateral hips had their onset in or are otherwise related to his active duty service, to include: 1) injuries the Veteran reports sustaining from carrying a mortar on his shoulder and working with "bulldozer and excavator chain machines," 2) neck pain having its onset in 2010, and 3) heavy lifting in service. The examiner must specifically address each of the Veteran's contentions, state whether the Veteran's current disabilities are at least as likely as not related to the reported event or injury, and explain why or why not. For purposes of this opinion, the examiner should accept the Veteran's reports as true. (In asking the examiner to accept the Veteran's reports, the Board does not at this time make a finding as to the credibility of his reports.) (d.) The examiner must NOT base a negative opinion on the silence of medical records or lack thereof, unless the examiner explains: 1) Why the silence or absence of records indicates the absence of symptoms or a medical condition, 2) why the symptoms or condition would normally have been recorded if present, and 3) why the silence or absence of medical records is medically significant. The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, 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.