Citation Nr: 1805187 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-07 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities. 3. Entitlement to service connection for hypertension, to include as secondary to PTSD, service-connected coronary artery disease (CAD), or asbestos exposure. 4. Entitlement to service connection for transient ischemic attacks (TIAs), to include as secondary to PTSD or service-connected CAD. 5. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to PTSD or asbestos exposure. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to June 1970, including service in the Republic of Vietnam from August 1967 to August 1968, and subsequent service in the Army Reserves. This matter comes before the Board of Veterans' Appeals Board on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In November 2015, the Veteran and his spouse testified before the undersigned Veterans Law Judge during a Central Office hearing; a transcript is of record. In June 2016, the Board remanded the issues on appeal, as well as the claim of entitlement to service connection for a skin condition of the feet, to the agency of original jurisdiction (AOJ) for further development. In a May 2017 rating decision, the AOJ granted service connection for tinea pedis of the right foot and left foot. As the May 2017 rating decision represents a full grant of the benefits sought with respect to that issue, such matter is no longer before the Board for consideration and is dismissed. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In December 2017, the Veteran submitted additional evidence in support of his claim without a waiver of AOJ consideration. However, as the appeal is being remanded for further development, the AOJ will have an opportunity to review this evidence in the first instance. See 38 C.F.R. § 20.1304 (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND At the outset, the Board notes that, following the issuance of the October 2017 Supplemental Statement of the Case, and before the case was certified to the Board in December 2017, the AOJ obtained additional medical evidence, including treatment records from the Walter Reed National Military Medical Center dated through November 2017. The appellate scheme set forth in 38 U.S.C. § 7104(a) (2014) contemplates that pertinent evidence will be first reviewed at the AOJ so as to not deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence prior to certification to the Board that is relevant to a claim or claims properly before it that is not duplicative of evidence already discussed in the Statement of the Case or Supplemental Statement of the Case, it must prepare a Supplemental Statement of the Case reviewing that evidence. 38 C.F.R. § 19.31(b)(1) (2017). Accordingly, this matter must be remanded for the AOJ to consider the additional evidence received following the issuance of the October 2017 Supplemental Statement of the Case. Lumbar Spine Disorder In the June 2016 remand, the Board directed the AOJ to schedule the Veteran for a VA examination to determine whether his current lumbar spine disorder is related to his military service. The Board asked the examiner to address whether a lumbar spine disorder clearly and unmistakably preexisted the Veteran's military service and, if so, whether such was clearly and unmistakably not aggravated by his military service. The Board also instructed the examiner to consider the Veteran's lay statements concerning the onset and continuity of symptoms associated with his lumbar spine. In April 2017, the Veteran underwent a VA examination, at which time he was diagnosed with degenerative arthritis of the spine. The examiner noted the Veteran's pre-service and service history of lumbar spine problems, and concluded that he likely sustained a lumbar strain in service. The examiner opined that degenerative joint disease of the lumbar spine was not diagnosed during service and, therefore, was not related to his military service. Instead, the examiner attributed it to the normal aging process. In a September 2017 addendum opinion, the April 2017 examiner stated that she should could not say without resort to mere speculation whether the Veteran's lumbar spine disorder clearly and unmistakably preexisted his military service. She also noted that there were no further diagnoses or treatment related to the Veteran's lumbar spine in-service. Given that the Veteran's degenerative joint disease of the lumbar spine was made many years following service and there was no evidence of chronic lumbar spine treatment, the examiner opined that his lumbar spine disorder was likely related to the normal aging process. Initially, given the September 2017 opinion concerning whether the Veteran's lumbar spine disorder clearly and unmistakably preexisted his military service, the Board finds that the presumption of soundness has not been rebutted and thus, the remaining question is whether his lumbar spine disorder is related to his military service. With regard to the April 2017 and September 2017 opinions, the Board finds that both are inadequate as they merely rely on the absence of in-service and post-service treatment for a lumbar spine disorder, and fail to reflect consideration of the Veteran's lay statements concerning the onset and continuity of symptoms associated with his lumbar spine. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a VA examination opinion must reflect consideration of lay evidence of both in-service incurrence and/or continuity of symptomatology since service). The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination report must not contain only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Therefore, given the Veteran's service treatment records and competent lay statements concerning problems with his lumbar spine during and since service, and to insure that all pertinent evidence is adequately considered, the Board finds that he should be afforded a new VA examination. Acquired Psychiatric Disorder With regard to the Veteran's claim for service connection for an acquired psychiatric disorder, he underwent a VA examination in March 2017. The examiner concluded that the Veteran did not meet the criteria for PTSD under the DSM-5 at that time, although he may have had sequelae from combat at one time. No other diagnoses were rendered. Subsequently, in July 2017, treatment records from the Prince George's County Vet Center were added to the record that show treatment for PTSD since January 2014. In a September 2017 addendum opinion, the March 2017 examiner stated that, while the Veteran may have met the criteria for PTSD in the past, his treatment had been successful, and he had progressed beyond having PTSD. The examiner then discussed the difference between PTSD screenings and clinical diagnoses. With regard to whether the Veteran had a valid diagnoses of PTSD, the Board notes that not only was a January 2014 PTSD screening positive, his VA treatment records list PTSD as an active problem beginning in January 2014. Furthermore, the current disability requirement is satisfied when a disability is shown at the time of the claim or during the pending of the claim, even if the disability subsequently resolves. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the fact that the Veteran did not meet the DSM-5 criteria at the time of the March 2017 VA examination does not preclude service connection. Finally, in December 2017, the Veteran submitted a Mental Disorders Disability Benefits Questionnaire (DBQ) which noted a diagnosis of major depressive disorder as a result of "other medical conditions connected to active service," including his lower back, right ankle, and CAD. No further explanation or rationale was provided. Given the Veteran's treatment records, the Court's holding in McClain, and the diagnosis of major depressive disorder in December 2017, the Board finds that he should once again be afforded a new VA examination to determine whether any acquired psychiatric disorder present at any time since the Veteran filed his claim in February 2006 is related to his military service, to include his confirmed stressor. Furthermore, given the December 2017 opinion, the examiner should also address whether any acquired psychiatric disorder is related to any of the Veteran's service-connected disabilities. Hypertension, TIAs, and ED With regard to the Veteran's claims for service connection for hypertension, TIAs, and ED, the Veteran has claimed entitlement as secondary to acquired psychiatric disorder. As such, the Board finds that those issues are inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder, since any decision on that matter may affect the Veteran's entitlement to service connection for hypertension, TIAs, and ED. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the claim for the second issue). As such, the Board will defer consideration of those issues at this time. On remand, the AOJ should also obtain any outstanding VA treatment records dated after April 2017. Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran should be provided the opportunity to identify any private treatment records that are relevant to his claims, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. See 38 C.F.R. § 3.159(c) (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated after April 2017. 2. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims. Make at least two (2) attempts to obtain records from any identified source. 3. 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 futile, which should be documented in the claims file. The Veteran 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). 4. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine whether any lumbar spine disorder is related to his military service. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's in-service health history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Following a review of the record, to include the Veteran's lay statements, the examiner should answer the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disorder is related to the Veteran's military service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology. The examiner's opinion must reflect consideration of the Veteran's reports as to his history and symptomatology. If the examiner chooses to reject his reports, the examiner must provide a reason for doing so, and his 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. A clearly-stated rationale for any opinion offered should be provided and must not be based on the lack of evidence of a lumbar spine disorder in his service treatment records. 5. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine whether any acquired psychiatric disorder is related to his military service or his service-connected disabilities. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's in-service health history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Following a review of the record, to include the Veteran's lay statements, the examiner should answer the following questions: a) Identify any acquired psychiatric disorders diagnosed at any time since February 2006, when the Veteran filed his claim, even if those disorders have since resolved. In this regard VA treatment records and the December 2017 DBQ reflect assessments and diagnoses of PTSD and major depressive disorder. b) For all identified diagnoses, is it at least as likely as not (50 percent or greater probability) that such is related to the Veteran's military service, to include his confirmed stressor of a fellow service member dying? c) If not, is it at least as likely as not (a 50 percent or higher probability) that any diagnosed acquired psychiatric disorder was caused by or related to a service-connected disability? d) If not, is it at least as likely as not (a 50 percent or higher probability) that any diagnosed acquired psychiatric disorder was aggravated (i.e., worsened beyond its natural progression) by a service-connected disability. 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. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology. The examiner's opinion must reflect consideration of the Veteran's reports as to his history and symptomatology. If the examiner chooses to reject his reports, the examiner must provide a reason for doing so, and his 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. A clearly-stated rationale for any opinion offered should be provided and must not be based on the lack of evidence of psychiatric treatment in his service treatment records. 6. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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).