Citation Nr: 1307877 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-03 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Michael J. Kelley, Esquire WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from April 1967 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Manchester, New Hampshire, regional office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied the Veteran's requests to reopen previously denied claims for service connection for emotionally unstable personality and a lower back disability as new and material evidence had not been submitted. The Veteran testified at hearings before the undersigned in November 2010 and January 2013. Transcripts of these hearings are in the claims folder. The appeal was previously before the Board in April 2011 when it was remanded for further development. In October 2012, the Board found that new and material evidence had been submitted to reopen the claim for service connection for a back disability. The Board also noted that evidence received after the April 2011 remand included new psychiatric diagnoses that had not been considered at the time of his original claim for service connection. The Board further noted that as a claim based on a diagnosis that was different from that considered in prior decisions is a new claim, it was no longer necessary to submit new and material evidence. Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). Both matters were again remanded in order to provide the Veteran with an additional hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's September 1966 service entrance examination showed no back or psychiatric impairment. He is therefore presumed to have been in sound condition when he entered service. 38 U.S.C.A. § 1111 (West 2002). The service treatment records include a June 1968 Medical Board Report, which notes that the Veteran had been hospitalized with complaints of back pain after returning from five months of being absent without leave. He indicated that his reason for being absent was to seek treatment for ongoing back pain, as he believed service department doctors had refused to help him. The initial diagnosis of the back complaints was back strain. However, all X-ray studies were normal, and there was little if any objective evidence of a back disability on physical examination. The Veteran was provided with psychological evaluation. A medical board recommended that the Veteran should be discharged due to an emotionally unstable personality, which had existed prior to entering service. The records show that the Veteran was discharged on the basis of this recommendation. Post service medical records include diagnoses of an anxiety disorder and a panic disorder as early as 1991. An October 2011 report of examination by a private psychologist diagnosed the Veteran as having post-traumatic stress disorder (PTSD), which she believed was related to the Veteran's active service. Medical records received from the Social Security Administration (SSA) dating from 2007 to 2009 include evidence of degenerative changes of the lumbar spine. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran has not yet been provided with a VA back or psychiatric disability claims. Given that there are findings pertinent to both disabilities in service, current diagnoses of both a back disability and an acquired psychiatric disability, and the Veteran's testimony supported to a certain extent by medical records that he has experienced ongoing symptoms for both his claimed psychiatric disability and his back since discharge, the Board finds that the Veteran must be provided examinations to determine the nature and etiology of each of his disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his back. All indicated tests and studies should be conducted. The claims folder must be provided to the examiner for use in the study of this case. After the completion of the examination and review of the record, the examiner should attempt to express the following opinion: a) Is it as likely as not that the Veteran's degenerative changes of the lumbar spine or any other current back disability that might be diagnosed on examination were incurred due to active service? The examiner should provide reasons for this opinion. The examiner should discuss the diagnosis of lumbar strain documented in the service treatment records and the Veteran's in-service complaints; and post service reports of symptoms. 2. Schedule the Veteran for a VA psychiatric examination. All indicated tests and studies should be conducted. The claims folder must be provided to the examiner for use in the study of this case. After the completion of the examination and review of the record, the examiner should attempt to answer the following question(s): a) Does the Veteran have any current acquired psychiatric disability (any disability shown at any time since November 2008)? b) Was any such disability manifested in service? c) If manifested in service, is there clear and unmistakable (un-debatable) evidence that the disability existed prior to service? If so, is there clear and unmistakable evidence that it was not aggravated (permanently increased in severity beyond the natural progression) by active service? d) Is any current psychiatric disability due to an in-service stressor? The examiner should provide reasons for these opinions. The examiner should discuss the diagnoses of panic disorder and anxiety disorder contained in the various private medical records as well as the October 2011 diagnosis of PTSD If the examiner is unable to provide any portion of the requested opinion without resort to speculation, the examiner should provide reasons why this is so, and state whether the inability to provide the needed opinion is due to the limits of medical knowledge or is due to missing evidence. 3. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the agency of original jurisdiction should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).