Citation Nr: 1801692 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-10 302A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to service connection for a heart disorder, including as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1979 to May 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from July 2013 and November 2013 decisions of the Buffalo, New York, and Boston, Massachusetts, Regional Offices (ROs). In a June 2017 informal hearing presentation (IHP), the Veteran's representative requested that the Board clarify whether the Veteran wanted a hearing before a Veterans Law Judge. In July 2017, the Board sent the Veteran a letter asking him whether he wanted a hearing and stated that, if he did not respond in 30 days, the Board would assume that he did not want a hearing. The Veteran did not respond. Therefore, the Board will assume that the Veteran does not want a hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board has determined that additional development is necessary and the appeal is, therefore, REMANDED as directed below. 1. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 2. Reasons for the Remand: The Veteran in April 2017 that he was receiving Social Security Disability benefits. Remand is necessary to obtain the records. Remand is also necessary to ensure that all service personnel records (SPRs) and service treatment records (STRs) have been associated with the record. A March 1979 STR indicates that the Veteran was referred for psychiatric services but there are no psychiatric STRs in the record. Additionally, no records related to the decision to discharge the Veteran are of record. In his July 2013 notice of disagreement (NOD), the Veteran stated that he first sought treatment for his back in 1981 at Long Island Jewish Hospital. Remand is necessary to attempt to obtain these records. Lastly, remand is necessary to obtain VA medical opinions. No opinion was provided as to service connection for a cervical spine disorder, the opinion as to posttraumatic stress disorder (PTSD) stated that the examiner could not provide an opinion without resort to speculation and did not address any other acquired psychiatric disorder, and the negative heart disorder opinion was based solely on the speculative PTSD opinion. 3. Contact the SSA and request that it provide documentation of the Veteran's award of disability benefits and copies of all records developed in association with the decision for incorporation into the record. 4. Attempt to obtain any additional SPRs or STRs not of record, including from alternative sources. 5. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his claimed disorders that is not already in VA's possession. Specifically request authorization to obtain records from treatment at Long Island Jewish Hospital in 1981. 6. AFTER ASSOCIATING THE ABOVE RECORDS WITH THE RECORD OR DOCUMENTING IN THE RECORD THEIR UNAVAILABILITY, return the file to the VA examiner who conducted the June 2013 thoracolumbar and cervical spine examinations. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for VA examinations to obtain an opinion as to the nature and etiology of his lumbar spine and cervical spine disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a. whether the Veteran's current lumbar spine disorders were caused by an in-service event, injury, disease, or disorder, or in any way originated in service. b. whether the Veteran's current cervical spine disorders were caused by an in-service event, injury, disease, or disorder, or in any way originated in service. c. whether lumbar spine arthritis manifested to a compensable degree within one year of service separation. d. whether cervical spine arthritis manifested to a compensable degree within one year of service separation. The examiner's attention is drawn to the following: *March 1979 X-ray study indicating that the Veteran's lumbar spine was normal. VBMS STR Entry 5/13/2013, p. 13. *March 1979 STRs indicating that the Veteran had lumbar spine complaints for the prior two months. He reported that he fell and that he was hit with a weapon. He was diagnosed with camptocormia posture secondary to "multiple mental problems" and was referred for psychiatric treatment. VBMS STR Entry 5/13/2013, p. 16. *March 1979 STR stating that the Veteran had low back pain for two months and that he stated he was hit in the back with a rifle. VBMS STR Entry 5/13/2013, p. 19. *April 2006 VA treatment record where the Veteran reported neck pain. VBMS Entry 9/26/2013, p. 13. *February 2007 VA cervical spine MRI report stating a diagnosis of "Osteogenic and discogenic degenerative changes C5-6 with slight C5 retrolisthesis and marginal spurring resulting in mild to moderate ventral canal and bilateral neural foraminal encroachment. Non-specific straightening of cervical lordosis also identified." LCM Entry 2/4/2015, p. 62. *January 2007 VA treatment record where the Veteran reported that he injured his neck while working in the moving business when a couch dropped in his arms and pulled his neck. VBMS Entry 9/26/2013, p. 8. *June 2013 VA treatment record where the Veteran stated that he was kicked in the back by his drill instructor while in service. VBMS Entry 9/26/2013, p. 94. *June 2013 VA examination report stating diagnoses of lumbar and cervical spine degenerative disc disease, a history of back contusion, and a history of neck contusion. *July 2013 NOD where the Veteran stated that he first sought treatment for his back in 1981 at Long Island Jewish Hospital, was told at that time that he had a muscle spasm in his low back and neck pain, and that he was required to take time off of work. *June 2014 VA treatment record stating that the Veteran "has chronic neck pain after being hit in the back from a drill sergeant in 1979 during basic training. He states that he has injured his low back in March 1979 in basic training and has pain to the low back since that time." LCM Entry 2/4/2015, p. 612. *April 2015 VA Form 9 where the Veteran wrote that he was hit in the back with a rifle in service. *May 2015 VA treatment record where the Veteran reported an in-service incident where he was kicked by a drill sergeant and hit repeatedly with his rifle. VBMS Entry 7/13/2015, p. 323. *June 2015 VA treatment record where the Veteran was treated for complaints of pain in his neck and low back. VBMS Entry 7/13/2015, p. 12. *December 2017 IHP summarizing the Veteran's contentions and history. 7. AFTER ASSOCIATING THE ABOVE RECORDS WITH THE RECORD OR DOCUMENTING IN THE RECORD THEIR UNAVAILABILITY, schedule the Veteran for VA PTSD and psychiatric disorders examinations to obtain an opinion as to the nature and etiology of all acquired psychiatric disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. If the examiner disagrees with a prior diagnosis, he/she should explain why. If it is a matter where the disability resolved, the examiner should explain the reason for such resolution and should attempt to identify the time at which the disorder was deemed resolved. In such a case, the examiner should render the below opinions as to the period during which the disorder was present. The examiner should address the following: a. whether each identified acquired psychiatric disorder was caused by any in-service event, injury, disease, or disorder, or in any way originated during service. b. whether psychoses manifested to a compensable degree within one year of service separation. The examiner's attention is drawn to the following: *March 1979 STR indicating that the Veteran was referred for psychiatric treatment. VBMS STR Entry 5/13/2013, p. 16. *April 2013 VA treatment record where the Veteran reported that he was physically harmed in basic training by a superior officer and stating diagnoses of alcohol dependence, cocaine dependence, and cannabis dependence. VBMS Entry 9/26/2013, p. 2. *May 2013 VA treatment record stating a diagnosis of PTSD. VBMS Entry 9/26/2013, p. 64. *June 2013 VA treatment record where the Veteran stated that he was kicked in the back by his drill instructor and when he attempted to fight back, other drill instructors attacked him. He was given extra duty and eventually went to see a psychiatrist and discharged from service. VBMS Entry 9/26/2013, p. 94. *June 2013 VA treatment record indicating a diagnosis of depressive disorder not otherwise specified. VBMS Entry 9/17/2013, p. 1. *July 2013 VA treatment record where the Veteran described an in-service incident where he was grabbed by another servicemember and responded by assaulting that person. The incident led to anger and in-service psychiatric treatment and discharge. VBMS Entry 9/17/2013, p. 2. *October 2013 VA PTSD examination report providing the Veteran's history and descriptions of his stressors. *October 2013 written statement from the Veteran about his psychiatric history and in-service stressors. *November 2013 Statement in Support of Claim for Service Connection for PTSD where the Veteran described his in-service stressors. *December 2014 VA treatment record stating diagnoses of PTSD, cocaine use disorder, and alcohol use disorder. LCM Entry 2/4/2015, p. 91. *April 2015 written statement from the Veteran where he described his in-service stressor and the history of his psychiatric disorders. *April 2015 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault where the Veteran described an in-service stressor. *April 2015 Statement in Support of Claim for Service Connection for PTSD where the Veteran described an in-service stressor. *April 2015 written statement from the Veteran where he described in-service stressors. *May 2015 VA treatment record where the Veteran reported an in-service incident where he was kicked by a drill sergeant and hit repeatedly with his rifle. VBMS Entry 7/13/2015, p. 323. *July 2015 VA treatment record stating diagnoses of PTSD; major depressive disorder, recurrent, moderate, with psychotic features; history of cocaine use disorder, moderate; and history of alcohol use disorder, mild. VBMS Entry 7/13/2015, p. 6. *July 2015 statement from the Veteran's brother describing the Veteran's behavior before and after service. *August 2015 VA treatment record stating "Initial onset of depression occurred childhood and appears related to early traumatic events. First occurrence of symptoms of post-traumatic stress was unknown but were likely present during childhood as well. Symptoms worsened during time in military and post-discharge." LCM Entry 8/7/2015, p. 2. *September 2015 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault where the Veteran listed two in-service stressors. *December 2017 IHP summarizing the Veteran's contentions and history. 8. AFTER ASSOCIATING THE ABOVE RECORDS WITH THE RECORD OR DOCUMENTING IN THE RECORD THEIR UNAVAILABILITY, return the file to the VA examiner who conducted the October 2013 heart examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA heart examination to obtain an opinion as to the nature and etiology of his heart disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a. whether any of the Veteran's current heart disorders were caused by an in-service event, injury, disease, or disorder, or in any way originated in service. b. if any of the following are diagnosed, whether they manifested to a compensable degree within one year of service separation: i. arteriosclerosis. ii. cardiovascular-renal disease. iii. endocarditis. iv. myocarditis. c. whether each identified heart disorder was caused by an acquired psychiatric disorder. d. whether each identified heart disorder was aggravated by an acquired psychiatric disorder. The examiner's attention is drawn to the following: *October 2013 VA examination report stating a history of coronary artery disease and stable angina. *January 2015 VA treatment record stating a cardiovascular history of coronary artery disease, acute myocardial infarction, postsurgical aortocoronary bypass status, coronary atherosclerosis of native coronary vessel, coronary atherosclerosis of autologous vein bypass graft, and benign hypertensive heart disease without congestive heart failure. VBMS Entry 7/14/2015, p. 586. *December 2017 IHP summarizing the Veteran's contentions and history. 9. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).