Citation Nr: 1324737 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 08-21 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include a generalized anxiety disorder, a chronic adjustment disorder, and posttraumatic stress disorder. 2. Entitlement to service connection for a lumbar disorder to include lumbar degenerative disc disease. 3. Entitlement to service connection for a heart disability to include coronary artery disease. 4. Entitlement to a total disability evaluation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and ES ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The appellant served on active duty from July 1959 to April 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Boston, Massachusetts Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The record was held open after the hearing for an additional 60 days so that the appellant could submit additional evidence; however, no additional evidence was received by VA. The record reveals statements from the Veteran indicating that he was no longer represented by the Disabled American Veterans. The appellant, however, indicated his desire to be represented by that service organization by his actions at the March 2013 hearing before the undersigned. The issues of entitlement to service connection for an acquired psychiatric disorder to include generalized anxiety disorder, an adjustment disorder, and post traumatic stress disorder; a heart disability; and a total disability evaluation based on individual unemployability are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A lumbar disorder, to include lumbar degenerative disc disease was not manifest during active service, lumbar arthritis was not manifest to a compensable degree within one year of separation from active duty, and a lumbar disorder is not otherwise attributable to active service. CONCLUSION OF LAW A lumbar disorder, to include lumbar degenerative disc disease, was not incurred in or aggravated by service, nor may lumbar arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in February 2009 VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. In finding that the duty to assist has been fulfilled, the Board acknowledges that the Veteran has testified that he is in receipt of Social Security disability benefits, in part, due to a back disorder. The appellant does not, however, suggest that Social Security records would show a link between any current lumbar disorder and service. Given that the Veteran denies receiving care for a back disorder in-service, or for many years post service, the Board finds that no argument has been presented showing that any Social Security records would be pertinent to the question whether a lumbar disorder, to include degenerative disc disease, was incurred or aggravated in-service. Analysis The Veteran appeals the denial of service connection for a back disability. He does not claim an actual back injury in service but rather his back problems developed because of the poor condition of the racks he slept in during service. He asserts that he had back pain on and off during service. During his March 2013 hearing, he expressed that his back pain became constant about 30 years ago. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some chronic diseases, including arthritis, may be granted if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Based on the evidence of record, the Board finds that the preponderance of the most probative evidence is against entitlement to service connection for a lumbar disability, to include lumbar degenerative disc disease. To that end, service treatment records are negative for any diagnoses, treatment and/or complaints for the back. In fact, at separation, the Veteran's spine was clinically evaluated as normal. There is also no evidence of compensably disabling arthritis within one year of separation from active duty. A review of the record discloses that the Veteran's lumbar disorder first manifested decades post service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The claims folder does not contain any competent evidence relating the Veteran's lumbar disability to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. The Board has reviewed all service treatment records, all VA medical records of file and private treatment records. These records do not include any opinion linking the Veteran's disability to service. Rather, post service treatment records link the Veteran's lumbar disorder to a postservice 1995 industrial accident. To the extent that the appellant argues that his disability is related to service, the Board acknowledges his contentions, but finds that as a lay person, he is not competent to render an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In sum, the most probative evidence of record is devoid of a showing that the appellant's low back disability is related to service. Accordingly, service connection for degenerative disc disease of the lumbar spine is denied. ORDER Entitlement to service connection for a lumbar disorder to include degenerative disc disease is denied. REMAND The Veteran has several psychiatric diagnoses which have arguably been linked both to service, as well as to non service related factors to include a 1995 industrial accident. The record shows a possible correlation between the Veteran's service and his psychiatric diagnoses, but he has not been afforded a VA examination in relation to his claims for service connection. In light of the Veteran's assertions and the private treatment records, a VA examination is warranted. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination is required. Additionally, the outcome of the claim for entitlement to service connection for an acquired psychiatric disorder, to include adjustment, generalized anxiety and post traumatic stress disorders, may affect the outcome of the claims of entitlement to service connection for a heart disability and a total disability evaluation based on individual unemployability. In this regard, the Veteran indicates that stress associated with his psychiatric problems may have contributed to his heart problems. He also contends that his anxiety prevents him from working. As such, the Board finds that the claims are inextricably intertwined. 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, both issues are also remanded. Finally, the Veteran testified that he has been awarded Social Security disability benefits due to his psychiatric disorder. Hence, further development is required. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any VA and/or private records pertaining to treatment for his disabilities that are not already of file. Any records obtained must be associated with the claims folder. If the RO/AMC cannot locate any identified record, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 2. The RO/AMC must contact the Social Security Administration and request that they provide a copy of any decision reflecting any award of disability benefits to the appellant, as well as copies of any medical records used in granting that benefit. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded a VA psychiatric examination to address the nature and etiology of any current psychiatric disorders. The claims file, to include the appellant's Virtual VA file, must be reviewed in conjunction with this examination. As to each and every psychiatric disorder diagnosed at the examination, or diagnosed at any time since 2008, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that such disorder is etiologically related to service. A complete, well reasoned rationale must be provided for any opinion offered. 4. If, and only if, a psychiatric disability is found to be at least as likely as not related to service, then the Veteran must be afforded a VA cardiovascular examination. The claims file, to include the appellant's Virtual VA file, must be reviewed in conjunction with this examination. Following the examination the physician examiner must opine whether it is at least as likely as not that any diagnosed heart disability is caused and/or aggravated by the psychiatric disability. Any opinion offered must take into account the Veteran's history and contentions, the private opinions of record and must be supported by a complete and fully reasoned rationale. 5. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. The RO/AMC must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The RO/AMC must ensure that all examiners documented their consideration of records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 7. Thereafter, the RO/AMC should readjudicate the claims. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs