Citation Nr: 25003344 Decision Date: 03/10/25 Archive Date: 03/10/25 DOCKET NO. 19-29 909 DATE: March 10, 2025 REMANDED Entitlement to service connection for an acquired psychiatric disability, also claimed as anxiety, is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Army from February 1975 to November 1976. See DD Form 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), the Agency of Original Jurisdiction. The present matter has been previously denied by the Board in May 2020 along with a claim for a nasal fracture and residuals. The Veteran subsequently appealed to the Court of Appeals for Veterans Claims (Court) only the denial of the claim for an acquired psychiatric disorder. In January 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the May 2020 denial of entitlement for a psychiatric disorder and remanded it to the Board for readjudication consistent with the JMPR. Subsequently, in November 2021, June 2022, December 2022, and August 2023, the Board remanded the appeal for an addendum opinion. Although further delay is regrettable, the Board finds another remand is necessary to ensure compliance with the January 2021 JMPR and Board remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for an acquired psychiatric disability. In August 2023, the Board remanded the claim to obtain new etiology opinions, after it found that the ones on file were all inadequate to decide the claim. See August 2023 Board Decision. On remand, the Board directed the RO to obtain the following opinions: (1) whether the Veteran's in-service left hand/wrist-cutting injury and related employment problems contributed to the Veteran's alcohol use disability, and if yes, whether the Veteran's alcohol use disability caused or aggravated the Veteran's acquired psychiatric disability; and (2) whether the Veteran's other service-connected disabilities cause or aggravate the Veteran's acquired psychiatric disability. In April 2024, the Veteran was afforded a new VA examination and opinion. At that time, the VA examiner confirmed a diagnosis of a moderate and recurrent major depressive disorder with anxious distress, and moderate alcohol use disorder in sustained remission. See April 2024 VA Examination Report. Because the alcohol use disorder is in remission, the VA examiner indicated that the Veteran's symptoms are all attributable to his major depressive disorder with anxious distress. Id. With respect to the first remand question, the VA examiner indicated in the VA examination report that while the disability is now in remission, "Alcohol use disorder was more likely than not a coping mechanism for veteran's mental health issues and at least as likely as not secondary to their MDD. It also has the potential to aggravate their other symptoms." See April 2024 VA Examination Report. With respect to the second remand question, whether the Veteran's other service-connected disabilities cause or aggravate the Veteran's acquired psychiatric disability, the VA examiner stated: "Veteran briefly talked about the laceration to his hand when talking about job performance and how it caused him to be slower than others. However, he reported that he stopped working because he realized he could make more money through stealing items verses working for minimum wage. Most of the time he talked about being raped in the military and his difficult childhood. He also discussed hip pain, knee pain, and back pain which make it hard to sleep and limit his mobility. Thus, it is my medical opinion veteran's MDD is less likely as not (50 percent or less probability) incurred in or caused by the laceration hand during service. Veteran's MDD is less likely as not (50 percent or less probability) proximately due to or the result of the veteran's service-connected disabilities. Veteran's MDD is less likely as not (50 percent or less probability) aggravated beyond its natural progression by the veteran's service-connected disabilities." See April 2024 VA Opinion. The Board finds that the April 2024 VA opinion is inadequate to decide the claim as it consists of mere conclusory statements without providing a thorough medical analysis to support the conclusions. With respect to the negative opinion on secondary aggravation, there is no rationale at all. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the case to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion")." In June 2024, the RO asked for an addendum opinion by the same examiner, indicating that the rationale from the April 2024 opinion was "vague and not complete." See June 2024 VA Opinion. At that time, the VA examiner stated that the Veteran's in-service left hand/wrist-cutting injury and related employment problems did not contribute to his alcohol use disability, and that the "Veteran's problems with alcohol are more likely than not due to his difficulty childhood, family history of alcohol use, failed first marriage, and general life circumstances after the military," thus contradicting his opinion from the April 2024 VA examination report that the alcohol was a coping mechanism to deal with his mental health issues, and that it potentially aggravated his other symptoms. Id. With respect to secondary service connection, the VA examiner opined that: "It is less likely as not the Veterans other service-connected disabilities cause or aggravate the Veterans acquired psychiatric disability. Veteran briefly talked about the laceration to his hand when talking about job performance and how it caused him to be slower than others. However, he reported that he stopped working because he realized he could make more money through stealing items verses working for minimum wage. Veteran also reported that they struggled in school prior to the military and did not graduate from high school or attain a General Educational Development (GED) which likely affected their employment post military." Id. The Board finds that the June 2024 VA opinion is also inadequate for the same reasons discussed above, i.e., the lack of a medical rationale in support of the opinion for both causation and aggravation. Nieves-Rodriguez, 22 Vet. App. 295,304 (2008); Stefl, 21 Vet. App. 120 (2007). In addition, during the pendency of the appeal, the U.S. Court of Appeals for the Federal Circuit clarified the standard for secondary service connection. See Spicer v. McDonough, 61 F.4th 1360, 1364-65 (Fed. Cir. 2023). Specifically, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364. For example, secondary aggravation may be established where the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability. Id. The April 2024 and June 2024 opinions do not conform to the restated standard. In light of the above, the Board concludes that entitlement to service connection for an acquired psychiatric disability, also claimed as anxiety, must be remanded. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: Obtain an opinion from an appropriate examiner that answers to the following: a. Did the Veteran's service-connected residuals of left wrist laceration cause or aggravate the Veteran's alcohol use disability? If yes, was the aggravation of his alcohol use disability a substantial factor in causing the Veteran's major depressive disorder with anxious distress? If yes, would the Veteran not have been diagnosed with major depressive disorder with anxious distress but for the aggravation of the alcohol use disability? b. Whether but for the Veteran's service-connected residuals of left wrist laceration, he would not have a current disability of major depressive disorder with anxious distress. c. Whether the Veteran's major depressive disorder with anxious distress would be less severe and result in less functional impairment but for the Veteran's service-connected residuals of left wrist laceration. If the examiner opines that the Veteran's major depressive disorder with anxious distress would be result in less functional impairment but for the service-connected residuals of left wrist laceration, the examiner must attempt to establish a baseline level of severity of the major depressive disorder prior to aggravation by the residuals of left wrist laceration. d. Whether, but for the Veteran's service-connected tinnitus, he would not have a current disability of major depressive disorder with anxious distress. e. Whether the Veteran's major depressive disorder with anxious distress would be less severe and result in less functional impairment but for the Veteran's service-connected tinnitus. If the examiner opines that the major depressive disorder with anxious distress would be result in less functional impairment but for the tinnitus, the examiner must attempt to establish a baseline level of severity of the major depressive disorder prior to aggravation by the tinnitus. f. Whether, but for the Veteran's service-connected left wrist scar, he would not have a current disability of major depressive disorder with anxious distress. g. Whether the Veteran's major depressive disorder with anxious distress would be less severe and result in less functional impairment but for the Veteran's service-connected left wrist scar. If the examiner opines that the major depressive disorder with anxious distress would be result in less functional impairment but for the left wrist scar, the examiner must attempt to establish a baseline level of severity of the major depressive disorder prior to aggravation by the left wrist scar. h. Whether, but for the Veteran's service-connected bilateral hearing loss, he would not have a current disability of major depressive disorder with anxious distress. i. Whether the Veteran's major depressive disorder with anxious distress would be less severe and result in less functional impairment but for the Veteran's service-connected bilateral hearing loss. If the examiner opines that the major depressive disorder with anxious distress would be result in less functional impairment but for the bilateral hearing loss, the examiner must attempt to establish a baseline level of severity of the major depressive disorder prior to aggravation by the hearing loss disability. Aggravation means an increase in disability - any additional impairment of earning capacity - of the nonservice-connected disability. The need for an in-person examination of the Veteran is left to the discretion of the medical professional. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. (Continued on the next page) ? If the medical professional cannot provide an opinion without resorting to mere speculation, the medical professional should provide an explanation stating why. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the medical professional's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the medical professional should provide a fully reasoned explanation. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fiorito, 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.