Citation Nr: 1312460 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-18 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran was a member of the United States Army Reserves, with periods of active duty from June 1974 to December 1974 and from June 1979 to May 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2006 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, and Detroit, Michigan. Jurisdiction is currently with the RO in Detroit, Michigan. The issues have been recharacterized to better reflect the evidence of record, the allegations of the Veteran, and the procedural postures of the claims. The Veteran testified at a March 2011 hearing held before the undersigned Acting Veterans Law Judge at the RO; a transcript of this hearing is of record. The issues were previously remanded by the Board in December 2011 for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for a low back disability and for an acquired psychiatric disability, to include schizophrenia. Unfortunately, further remand is required to ensure compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Low Back Disability In the December 2011 remand, the Board determined that there was no evidence of any low back disability or injury during the Veteran's first period of active duty service. Although he alleged a slip and fall injury, the evidence of record clearly and unmistakably established that the Veteran had injured his back at work between periods of service. However, the record does not reflect that any examination was provided the Veteran on entry into his second period of service, and hence the Veteran must be presumed sound at that time, unless the presumption is rebutted. When no pre-existing injury or disease is noted upon entry into service, a Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As the Board has already determined that clear and unmistakable evidence establishes a pre-existing disability, analysis turns to the second prong of the rebuttal test: aggravation. Service treatment records (STRs) reflect a complaint of low back pain in November 1979, and the Veteran complained of a history of recurrent back pain on his separation examination that same month. However, no clinical findings showing a current low back disability are noted by the examiner. The Board directed that a spine examination be provided in order to obtain a reasoned medical opinion as to whether there was any worsening of the pre-existing low back disability during service, and if so, whether such worsening was clearly and unmistakably due to the natural progression of the disease. An examination was performed in March 2012. The examiner reviewed the claims file and performed a full assessment of the current status of the Veteran's low back. He then opined that the disability clearly and unmistakably pre-existed service, and that such was clearly and unmistakably not aggravated beyond the natural progression by service. However, the examiner's rationale is inadequate; it is in fact absent. He merely states that the condition was not aggravated beyond the natural progression because there was no evidence of aggravation beyond the natural progression in the file. Restatement of the conclusion is not a rationale. Further, the fact that the Veteran feels his stroke residuals are more disabling than his back is totally irrelevant to the question of how bad his back disability was at any point in time. To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The lack of a rationale here renders the March 2012 spine examination inadequate. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, further remand to obtain the necessary opinion is required. Acquired Psychiatric Disorder Remand to obtain an adequate VA examination is also required with respect to the Veteran's claim of service connection for an acquired psychiatric disorder. In December 2011, the Board determined that there was extensive evidence of mental health treatment prior to the Veteran's entry onto active duty for his second period of service in June 1979. He was hospitalized several times and referred for assessment by his private employers. It was unclear, however, whether there was a diagnosis of a service-connectable chronic acquired psychiatric disorder. Some examiners indicated a mood disorder or possible schizophrenia, while others opined problems were related to the Veteran's alcohol abuse. Alcohol abuse is willful misconduct and generally service connection cannot be granted for alcohol abuse or conditions arising from such. 38 C.F.R. § 3.301. Moreover, STRs show that the Veteran was discharged from service in May 1980 due to disability following a medical evaluation board (MEB) which diagnosed schizophrenia. The Board therefore remanded the matter for examination and medical opinion to determine if an acquired psychiatric disorder clearly and unmistakably pre-existed the Veteran's second period of active duty service, and whether any worsening of such during service was clearly and unmistakably due to the natural progression of the disease. On examination in March 2012, the examiner indicated instead that no diagnosis of an acquired psychiatric disorder was warranted other than alcohol abuse and related mood disturbances. Although this is not strictly responsive to the Board's inquiry, it is sufficient, as in effect the examiner indicated that the Board's question was no the appropriate one to ask in his opinion. Unfortunately, the rationale offered for the examiner's opinion is not sufficient. He does state that he so opined based on his review of the file and the history provided by the Veteran, but he fails to offer any specific explanation for the divergence of his opinion and that of the MEB. The MEB, as well as private providers who examined the Veteran prior to 1979, offered detailed descriptions of his behaviors and symptoms at the time in rendering their diagnoses. The VA examiner discussed none of these findings, and does not indicate why, in light of current findings, he disagrees with their conclusions. The Board is therefore stymied in any attempt to weigh the relative probative value of the competent medical evidence. Remand is required for a fuller explanation of why the pre-service and in-service evaluators were incorrect. Moreover, some clarification of the current diagnosis is necessary. The examiner listed alcohol abuse and a mood disorder NOS as current axis I diagnoses. He then opined that there is no evidence of a "primary psychotic disorder." He stated instead that the alcohol abuse had most likely caused mood or psychotic symptoms "in the past." This does not address the etiology or potential nexus for the listed current mood disorder NOS. Further, it is unclear if the examiner considered the possibility of diagnosis or nexus for any condition other than schizophrenia/psychoses. The current claim encompasses all acquired psychiatric disorders, whether psychoses or not. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the provided rationale is not adequate, remand is required. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. VA must return the claims file to the examiner who conducted the March 2012 VA back examination for a clarifying opinion. The examiner is informed that the evidence of record clearly and unmistakably establishes that a low back disability pre-existed the Veteran's second period of active duty service, and no disease or injury is established for his first period of service. On remand, the examiner must expand upon and explain his March 2012 opinion. Specifically, the basis for the opinion that the low back disability was clearly and unmistakably not aggravated beyond the natural progression of the disease is required. The instance of complaint of low back problems in November 1979 must be addressed. If the low back condition was simply not worsened in service, the examiner should clearly so opine. 2. VA must return the claims file to the examiner who conducted the March 2012 VA examination of his psychiatric disability. The examiner must address the following: a) Do the numerous instances of VA and private mental health complaints and treatment between 1975 and 1979, between periods of active duty service, clearly and unmistakably establish that an acquired psychiatric disorder of any type existed prior to entry onto active duty in June 1979? b) If such condition existed prior to service, was the apparent worsening of such (resulting in discharge) clearly and unmistakably the natural progression of the disease? c) Was the in-service diagnosis of schizophrenia a valid diagnosis? Why or why not? Is the condition present in service still present, regardless of diagnosis? d) Is the currently diagnosed mood disorder NOS listed in the March 2012 related to alcohol abuse or aggravated or caused by military service? 3. ALL VA EXAMINERS MUST BE INFORMED that a full and complete rationale for all opinions expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).