Citation Nr: 1801044 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-24 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a lumbar spine disorder. 3. Entitlement to service connection for a right hip disorder. 4. Entitlement to service connection for a left hip disorder. 5. Entitlement to service connection for a right knee disorder. 6. Entitlement to service connection for a left knee disorder. 7. Entitlement to service connection for a right ankle disorder. 8. Entitlement to service connection for a left ankle disorder. 9. Entitlement to service connection for a neurological disorder of the upper extremities, including as secondary to a lumbar spine disorder. 10. Entitlement to service connection for a neurological disorder of the lower extremities, including as secondary to a lumbar spine disorder. 11. Entitlement to service connection for a cervical spine disorder. 12. Entitlement to service connection for a right shoulder disorder. 13. Entitlement to service connection for a left shoulder disorder. 14. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 2002 to February 2003 and from February 2003 to February 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2010, January 2011, and March 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. REMAND Based on a review of the documents in the Veteran's claims file, it appears that the RO did not consider the most recent evidence of record pertaining to the claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD. Additional evidence, including a November 2016 VA examination report with medical opinion, has been associated with the Veteran's claims file. As a result, the RO must consider all evidence pertaining to the appellant's claims on appeal in the first instance. Therefore, the claim for service connection of an acquired psychiatric disorder, to include PTSD, must be remanded for this procedural step to be completed. See 38 C.F.R. § 19.31(c) (the agency of original jurisdiction is to issue a supplemental statement of the case when, pursuant to a Board remand, it develops evidence or cures a procedural defect). The Veteran asserts that he has a psychiatric disorder, a lumbar spine disorder, and right and left knee disorders related to his active service. The Board acknowledges that the Veteran was provided with VA examinations with regard to these claims. Nonetheless, the February 2010, September 2010, and November 2016 VA examinations are insufficient. The Board observes that the February 2010 VA spine examination report acknowledged the Veteran's in-service treatment for back pain, but found that the Veteran's cervical and lumbar spine disorders are related to a post-service injury; however, the VA examiner did not provide a rationale for this opinion. Moreover, the September 2010 VA examiner, in finding that the Veteran's degenerative joint disease of the left knee and patellofemoral dysfunction of the right knee are not likely related to service, despite a report of an in-service injury, relied solely on a lack of evidence of consecutive treatments and did not provide a rationale which addresses the Veteran's report of continuity of symptoms after discharge. Regarding the Veteran's November 2016 VA PTSD examination, the Board finds the medical opinion insufficient because the VA examiner did not explain why the Veteran did not meet the diagnostic criteria for PTSD and/or what criteria were not met, and relied on the lack of post-service psychiatric treatment prior to 2011, despite the Veteran's September 2005 report of worsening health and depression since his deployment. Likewise, in each instance, the VA examiners did not address the assertions of the Veteran's private physician, who related the Veteran's claimed disorders to his periods of active duty. The Board notes that the private physician's opinions are also insufficient as they are based solely on the Veteran's report of history and do not provide a rationale. The Board may not accept the medical diagnoses to the extent that they are not supported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board finds that the Veteran should be afforded new VA examinations regarding the claims for service connection of an acquired psychiatric disorder, lumbar spine disorder, and right and left knee disorders. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A probative medical opinion should be based on an accurate factual premise. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran also asserts that he has a right and left hip disorders, right and left ankle disorders, right and left shoulder disorders, a neurological disorder of the upper and lower extremities, and a cervical spine disorder related to his service. The record indicates that the Veteran's treating physicians have associated the claimed disorders with his service, including as secondary to his claimed lumbar spine and right and left knee disorders, but that treatment for the claimed disorders is not shown in service. Accordingly, the Board finds that the Veteran should be afforded VA examinations regarding the claims for service connection of right and left hip disorders, right and left ankle disorders, right and left shoulder disorders, a neurological disorder of the upper and lower extremities, and a cervical spine disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Any available VA treatment should be associated with the Veteran's claims file. As the Veteran's claims of service connection cannot be adjudicated at this time, the Board finds that a decision on the remaining issue of entitlement to TDIU must be deferred to allow the RO the opportunity to adjudicate the claims of entitlement to service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to obtain and associate with the record copies of the Veteran's VA treatment records, if any, associated with the claims on appeal for the rating period on appeal. 2. The Veteran should be afforded a VA spine examination to determine the nature and etiology of any cervical and/or lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current cervical and/or lumbar spine disorder(s) and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified cervical and/or lumbar spine disorder is related to any event, illness, or injury during service. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 3. The Veteran should be afforded appropriate VA orthopaedic examinations to determine the etiology of any right and/or left knee, hip, shoulder, and/or ankle disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current right and/or left knee, hip, shoulder, and/or ankle disorders(s) and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified right and/or left knee, hip, shoulder, and/or ankle disorders are related to any event, illness, or injury during service. If, and only if, the Veteran's lumbar spine disorder is related to his periods of active duty, and if the Veteran's identified right and/or left knee, hip, and/or ankle disorders are not related to any event or injury during service, the VA examiner should provide an opinion as to whether any identified right and/or left knee, hip, and/or ankle disorders are proximately due to or the result of the service-connected lumbar spine disorder, including whether any increase in severity of the identified right and/or left knee, hip, and/or ankle disorders are due to or the result of the service-connected lumbar spine disorder. If, and only if, the Veteran's cervical spine disorder is related to his periods of active duty, and if the Veteran's identified shoulder disorder(s) are not related to any event or injury during service, the VA examiner should provide an opinion as to whether any identified shoulder disorder(s) are proximately due to or the result of the service-connected cervical spine disorder, including whether any increase in severity of the identified shoulder disorder(s) are due to or the result of the service-connected cervical spine disorder. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 4. The Veteran should be afforded a VA neurological examination to determine the nature and etiology of any radiculopathy or neuropathy of the upper and/or lower extremities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current radiculopathy or neuropathy of the upper and/or lower extremities and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified radiculopathy or neuropathy of the right and/or left upper and/or lower extremities are related to any event, illness, or injury during service. If, and only if, the Veteran's lumbar spine disorder is related to his periods of active duty, and if the Veteran's identified radiculopathy or neuropathy of the lower extremities are not related to any event or injury during service, the VA examiner should provide an opinion as to whether any identified radiculopathy or neuropathy of the lower extremities are proximately due to or the result of the service-connected lumbar spine disorder, including whether any increase in severity of the identified radiculopathy or neuropathy of the lower extremities are due to or the result of the service-connected lumbar spine disorder. If, and only if, the Veteran's cervical spine disorder is related to his periods of active duty, and if the Veteran's identified radiculopathy or neuropathy of the upper extremities are not related to any event or injury during service, the VA examiner should provide an opinion as to whether any identified radiculopathy or neuropathy of the upper extremities are proximately due to or the result of the service-connected cervical spine disorder, including whether any increase in severity of the identified radiculopathy or neuropathy of the upper extremities are due to or the result of the service-connected cervical spine disorder. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 5. The RO should schedule a VA examination to determine the presence and etiology of an acquired psychiatric disorder, to include PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran has PTSD which is caused or aggravated by his service. The examiner is requested to identify the stressor that serves as the basis for any PTSD diagnosis and note the diagnostic criteria utilized to support the diagnosis under DSM-IV/V. If the VA examiner finds the diagnostic criteria is not met, the VA examiner is to provide an explanation for such a finding. If the Veteran does not have PTSD, the VA examiner is requested to provide any opinion as to whether it is as least as likely as not (50 percent probability or more) that the Veteran has an acquired psychiatric disorder (i.e., depression) which was caused or aggravated by his service. The requested determination should also consider the Veteran's medical history prior to, during, and since his military service. The VA examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale should accompany each opinion provided. 6. After completing all indicated development, the RO should readjudicate the claims for service connection and TDIU in light of all the evidence of record. If any of the benefits sought remain denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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). These claims 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 2014). _________________________________________________ GAYLE E. STROMMEN 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).