Citation Nr: 1804474 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-20 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lumbar spine disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Michael A. Steinberg, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1990 to June 1992; she also served in the Georgia Army National Guard from June 1993 to September 1995, with periods of active duty for training (ACDUTRA); finally, she had United States Army Reserve service thereafter. These matters come before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Veteran testified before the undersigned during a videoconference hearing; a transcript of this hearing is associated with the record. With regard to the characterization of the claim for a lumbar spine disorder, the agency of original jurisdiction (AOJ) characterized the issue as entitlement to service connection for lower back pain. However, the United States Court of Appeals for Veterans Claims (Court) has held that a claim includes all disabilities that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Therefore, the Board has recharacterized the issue on appeal more broadly as entitlement to service connection for a lumbar spine disorder. With regard to the characterization of the claim for an acquired psychiatric disorder, the Board notes that the AOJ characterized the Veteran's claim as entitlement to service connection for depression. However, in light of the medical evidence of record, the Board has recharacterized the claim as entitlement to service connection for an acquired psychiatric disorder, so as to accurately reflect the evidence of record as well as to comport with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Lumbar Spine Disorder The Veteran claims entitlement to service connection for a lumbar spine disorder. Specifically, she alleges that she started to experience back pain during basic training after doing pushups. See July 2017 Hearing Transcript, p. 6. She sought treatment and eventually underwent two weeks of physical therapy. Id. at 7. She stated that she continued to experience back pain throughout the rest of her active duty service, including during her pregnancy, and that the pain continued after her discharge from active duty. The Veteran also stated that she underwent treatment for low back pain while service in the National Guard in 1994. She stated that, although she did not seek treatment thereafter, she continued to experience low back pain until she filed her claim for service connection in 2009. Id. at 12. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303(a) (2017). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(21) (2014), (24); 38 C.F.R. § 3.6(a) (2017). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. The Board notes that some of the Veteran's service treatment records have been deemed unavailable. See August 2009 VA Memorandum. The Board is aware that when service records are unavailable through no fault of the veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005), Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, of record is a 1994 Statement of Medical Examination and Duty Status which detailed an injury to the Veteran's back sustained in February 1994. The Statement of Medical Examination and Duty Status noted that her injury was incurred in the line of duty, and that she was on ACDUTRA at the time. In support of her claim, the Veteran submitted a February 2013 statement from a fellow servicemember, M.J., who recalled the Veteran's complaints of and treatment for back pain during service. The Veteran underwent a VA examination in October 2009. The examiner noted her reported history of low back pain since late 1990. She was diagnosed with a chronic lumbosacral strain. Despite the diagnosis, the examiner did not provide an opinion as to whether the chronic lumbosacral strain was related to her military service. Once VA provides a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the examiner failed to address the significance of the 1994 Statement of Medical Examination and Duty Status and failed to provide an opinion as to whether her chronic lumbosacral strain was related to her military service, and to ensure that the lay statements of record concerning her in-service injuries and symptoms are adequately considered, the Board finds that a new VA examination is necessary. Acquired Psychiatric Disorder The Veteran claims entitlement to service connection for an acquired psychiatric disorder as a result of her military service, including witnessing a fellow servicemember die as a result of a motor vehicle accident, as well as being the victim of a military sexual trauma during a period of ACDUTRA. See July 2017 Hearing Transcript, pp. 22-25. Additionally, the Veteran has attributed her psychiatric problems to her back pain. See id. at 29. The Board notes that, to date, the Veteran has not been given proper notice of the provisions of 38 C.F.R. § 3.304(f)(5) (2017) concerning the evidence necessary to support the award of service connection for PTSD due to an in-service assault. Additionally, she had not been provided notice of what is necessary to support a claim for secondary service connection under 38 C.F.R. § 3.310 (2017). Therefore, on remand, such notice must be provided. The Board notes that he in-service stressor of witnessing a fellow servicemember die as a result of a motor vehicle accident has been corroborated. See February 2014 Response from the Defense Personnel Records Information Retrieval System. The Veteran's VA treatment records and VA examination reports reflect diagnoses of PTSD, mood disorder, anxiety, depressive disorder, alcohol abuse, unspecified depressive disorder, and other specified personality disorder. In October 2009, the Veteran underwent a VA examination. At that time, the Veteran was diagnosed with depressive disorder and alcohol abuse. Despite these diagnoses, however, the examiner did not provide an opinion as to whether they were related to her military service. In March 2014, the Veteran underwent another VA examination. At that time, she was diagnosed with unspecified depressive disorder and other specified personality disorder. The examiner noted the Veteran's pertinent medical history, including pre-service childhood trauma, in-service trauma, and post-service trauma. The examiner ultimately opined that the Veteran's diagnoses were less likely than not related to her military service. The examiner instead determined that her diagnoses were related to her history of childhood trauma and abuse, and that there was no indication that her in-service experiences disrupted her adjustment or emotional well-being since she was able to continue for several years in the National Guard and Reserves. The Board finds that the evidence of record has raised the issue of whether the Veteran was sound upon entrance into her period active duty. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2014). To rebut the presumption of sound condition, the VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Veteran's March 1990 entrance is silent for any psychiatric diagnoses. Thus, she is presumed to have been sound upon entrance in August 1990. In order to demonstrate that the condition clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be undebatable. Quirin, 22Vet. App. at 396 (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). With regard to the medical opinions of record, none of the VA examinations adequately address issues presented. As noted above, the October 2009 VA examiner failed to provide any opinion at all, and the March 2014 inappropriately placed the burden on the Veteran to show that in-service experiences "disrupted her adjustment or emotional well-being" when, since she is presumed, VA has the burden to show that the condition clearly and unmistakably pre-existed and was not aggravated by her military service. Given the fact that the Veteran is entitled to the presumption of soundness, and that the medical opinions of record do not adequately address whether any acquired psychiatric disorder clearly and unmistakably existed prior to service and was not aggravated by service, the record does not include sufficient medical information to determine whether the presumption of soundness has been rebutted, or whether the record otherwise presents a basis for an award of service connection. Thus, to ensure due process, a remand is necessary so that an adequate VA examination and opinion can be obtained. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Barr, supra. The examiner should also address whether any acquired psychiatric disorder is secondary to her lumbar spine disorder. Given the need for further remand, the Veteran should be given another opportunity to identify and provide any necessary authorizations for any pertinent VA or non-VA records. If she responds, the AOJ should take any necessary steps to associate any identified records with the claims file. 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice concerning the evidence necessary to support the award of service connection for PTSD due to an in-service assault in accordance with provisions of 38 C.F.R. § 3.304(f)(5), as well as what is necessary to support a claim for secondary service connection under 38 C.F.R. § 3.310 (2017). 2. Send the Veteran a letter requesting that she provide information and, if necessary, authorization, to enable VA to obtain any additional VA or non-VA treatment records pertinent to the claims on appeal. Specifically request that she provide, or provide appropriate authorization so as to allow VA to obtain, any outstanding private records. All reasonable attempts should be made to obtain such records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform her and her attorney, and afford them an opportunity to submit any copies in her possession. For federal records, including VA treatment records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. She must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All records and/or responses received should be associated with the record. 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine whether any current lumbar spine disorder is related to her military service. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (a) The examiner should identify any lumbar spine disorders diagnosed at any time since March 2009, when the Veteran filed her claim. (b) The examiner should then offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any lumbar spine disorder had its onset during, or is the result of active duty service, including her reports of back pain during basic training; or any verified period of ACDUTRA, including her documented February 1994 injury. The examiner should consider the Veteran's reports, including her testimony regarding the onset of lumbar spine symptoms in service. The examiner's opinion must reflect consideration of the Veteran's reports as to her history and symptomatology. If the examiner chooses to reject her reports, the examiner must provide a reason for doing so, and her lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary to render an opinion. All opinions must be accompanied by supporting rationale. 4. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine whether any acquired psychiatric disorder is related to her military service, or secondary to her lumbar spine disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should address the following: (a) Identify any acquired psychiatric disorders diagnosed at any time since March 2009, when the Veteran filed her claim. In this regard, her VA treatment records and VA examination reports reflect diagnoses of PTSD, mood disorder, anxiety, depressive disorder, alcohol abuse, unspecified depressive disorder, and other specified personality disorder. (b) With regard to any identified acquired psychiatric disorder, did such clearly and unmistakably preexist the Veteran's period of active duty service? - If so, is there clear and unmistakable evidence that such did not undergo an increase in the underlying pathology, i.e., was not aggravated by her period of active duty service? - If there was an increase in severity of such disability, was that increase clearly and unmistakably due to the natural progression of the disability? (c) If any identified acquired psychiatric disorder did not clearly and unmistakably preexist the Veteran's period of active duty service, is it at least as likely as not that such is related to her active duty military service, including witnessing a fellow servicemember die in a motor vehicle accident, which has been verified; or her reported in-service military sexual trauma during a period of ACDUTRA? (d) If any identified acquired psychiatric disorder is not related to the Veteran's military service, is it at least as likely as not (a 50 percent or higher probability) that such was caused by or related to her lumbar spine disorder? (e) If not, is it at least as likely as not (a 50 percent or higher probability) that identified acquired psychiatric disorder was aggravated by her lumbar spine disorder? VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability. The examiner should consider the Veteran's reports, including her testimony regarding the onset of psychiatric symptoms in service. The examiner's opinion must reflect consideration of the Veteran's reports as to her history and symptomatology. If the examiner chooses to reject her reports, the examiner must provide a reason for doing so, and her lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary to render an opinion. All opinions must be accompanied by supporting rationale. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated. If the claims remains denied, she and her attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).