Citation Nr: 1754477 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-02 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder and a mood disorder not otherwise specified (NOS). 2. Entitlement to service connection for lumbar spine degenerative disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1993 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran presented sworn testimony at a hearing before the undersigned in April 2017. The Veteran's claim of service connection has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a lumbar spine disorder and an acquired psychiatric disorder, to include PTSD, Major Depressive Disorder and a mood disorder NOS. The Board finds that remand is necessary to obtain additional documents, make attempts to verify the Veteran's reported stressors, and obtain new medical examinations and/or opinions concerning the claims. Outstanding Medical Records The record shows that during the appeal period the Veteran was treated by VA for his psychiatric disorders. The most recent VA treatment records in the claims file are from February 2013. All outstanding VA treatment records should be obtained. Sullivan v. McDonald, 815 F.3d 786 (2016). Additionally, the Veteran reported receiving mental health treatment from a Veteran's transition center, Memorial Hospital, Presbyterian Hospital, Bern County Jail, and a non-VA psychiatrist/psychologist as part of his probation. Attempts to obtain records from these providers should be made. 38 C.F.R. § 3.159(c). Corroboration of Stressor The Veteran reported that one of his fellow service members was almost thrown overboard when their ship was caught in a hurricane, but the Veteran was able to grab him before he fell overboard. See April 2017 Hr'g Tr. at 8. Attempts should be made to corroborate the Veteran's report of experiencing a hurricane during service. The Veteran also reports that he was physically assaulted while in the service. VA Examinations and/or Medical Opinions The Veteran's service treatment records (STRs) show that he injured his back in service, and the Veteran testified that he has had recurring back pain since service. See April 2017 Hr'g Tr. at 2, 9-10. He was provided a VA examination in January 2012 addressing the etiology of this condition. The examiner stated that he could not provide an opinion as to whether the Veteran's current lumbar spine disorder is at least as likely as not related to his injury in service without resorting to speculation because there is no documentation of back pain existing in the records for the period from 1997 to 2004 to establish chronicity of the complaint for this period. The Board notes that the examiner did not consider the Veteran's competent lay reports of ongoing back pain since his injury in service, instead relying on the absence of complaints in the records. Thus, a new medical opinion must be obtained addressing the Veteran's competent lay reports concerning the onset and recurrence of his low back pain. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate). A new VA examination and medical opinion is also required concerning the Veteran's psychiatric disorder. He was provided a VA examination in January 2012, at which time the examiner found that he did not meet the diagnostic criteria for PTSD. Since that time, the Veteran has been diagnosed with PTSD and a major depressive disorder by a treating VA clinical psychologist, and has received additional mental health treatment. See November 2012 VA Mental Health Interdisciplinary Note. The Veteran has also provided additional information concerning the stressors he experienced in service. This new evidence should be considered by a VA examiner. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An opinion should also be obtained with regard to the onset and etiology of the Veteran's diagnosed mood disorder NOS. The examiner performing the January 2012 VA examination diagnosed the Veteran as having a mood disorder NOS, but did not address whether that condition had its onset during service or is related to an event occurring in service. Such an opinion is necessary to adjudicate the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records. 2. Ask the Veteran to identify any private medical care providers who treated him for a psychiatric or back disability. After securing any necessary authorization, obtain records from any identified providers, including the Veteran's Transition Center, Memorial Hospital, Presbyterian Hospital, Bern County Jail, and the psychiatrist/psychologist who treated him as part of his probation. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric and back symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Make attempts to verify the Veteran's reported stressors in accordance with the procedures set forth in the VA Adjudication Procedures Manual. 5. After completing the development in paragraphs 1-4 above (to the extent possible), schedule the Veteran for an appropriate VA examination to address the nature and etiology of his psychiatric disorder(s). The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. After a review of the claims file, the examiner should address the following: (1) whether the Veteran's symptomatology and presentation at any point during the appeal period (December 2010 to the present) meets the diagnostic criteria for PTSD; and, if so, the underlying stressor supporting that diagnosis; (2) whether it is at least as likely as not that any of the Veteran's psychiatric disorders diagnosed at any point during the appeal period, to include PTSD, major depressive disorder and a mood disorder NOS, had its onset in service or is otherwise related to an event, injury or disease incurred in service. 6. After completing the development in paragraphs 1-4 above (to the extent possible), obtain an addendum medical opinion concerning the onset and etiology of the Veteran's lumbar spine disorder. An examination is not necessary unless directed by the examiner. After a review of the claims file, including the lay statements provided by the Veteran, the examiner should state whether it is at least as likely as not that any of the Veteran's diagnosed lumbar spine disorders (1) had its clinical onset during active service or within one year after his separation from service, or (2) is otherwise related to an event, injury or disease incurred in service. In reaching his or her conclusions, the VA examiner should specifically review and consider the lay statements of the Veteran concerning his low back injuries and symptoms in service, and recurrent back pain since service. If any opinion requested above 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). 7. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).