Citation Nr: 1805728 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-35 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for depression. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel REMAND The Veteran served on active duty from May 1974 to July 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were before the Board most recently in November 2016 and were remanded for a Travel Board hearing. The Veteran was afforded such a hearing in April 2017 before the undersigned Veteran's Law Judge. Additional relevant evidence has been received since the February 2010 supplemental statement of the case (SSOC). As the claims are being remanded, the Veteran is not prejudiced by the Board's decision without a waiver. See 38 C.F.R. § 20.1304(c). A. Low Back The Veteran sought treatment in service for his lower back. A May 1975 service treatment record (STR) indicated the Veteran sought treatment for right lumbar pain and tenderness. An STR dated May 15, 1975 indicated the Veteran had 7 treatments for his lower back between May 5, 1975 and May 14, 1975, and noted relief of the pain. Additionally, a July 1975 STR noted the Veteran strained his back while moving a stove and suffered from continued back pain. However, the June 1976 separation examination did not indicate a low back diagnosis. The Veteran was afforded one VA examination during the appeal period, in September 2007. The Veteran reported constant back pain and flare-ups, which were severe and could last for several days. The examiner diagnosed the Veteran with chronic DDD of the lumbar spine. He stated the Veteran did not seek treatment for his back until 2005, 30 years after his injury. He indicated, however, it is at least as likely as not that the Veteran's complaints of back pain are related to his injury from 1975. In contrast, he stated the Veteran should not be considered for service connection status for his lumbar spine. The physician's decision and rationale with regard to the etiology of the Veteran's back disorder is contradictory and therefore, not adequate. Additionally, at the April 2017 Board hearing, the Veteran testified that he fell through a ceiling during service while trying to repair a steam boiler, injuring his back. He stated he was treated with medication and heating pads and that the in-service injury was the onset of his back disability, which continued thereafter. The Board finds an additional VA examination is required to determine the nature and etiology of the claimed low back disability. The September 2007 VA examination was more than ten years ago and the opinion is contradictory in nature. Relevant evidence has been received since that time, including the Veteran's testimony at the April 2017 Board hearing. Therefore, an additional VA examination and opinion should be obtained. B. Right Ankle The Veteran injured his right ankle during service. A March 1975 STR indicated the Veteran hurt his right ankle and required crutches with no weight bearing. An STR dated March 28, 1975 noted a prior right ankle sprain and the removal of a cast, with no pain or swelling found. Additionally, a September 1975 STR noted the Veteran complained of a sprained ankle from playing basketball, although no indication is found if it is the left or right ankle. The June 1976 separation examination did not indicate a right ankle disorder. The Veteran was afforded a September 2007 VA examination in which he reported constant right ankle pain which had its onset during service. The examiner diagnosed him with a right ankle condition, secondary to chronic ankle sprain and that the right ankle disorder is not related to service. He noted an attempt to link the ankle condition to injuries sustained over 30 years prior without medical documentation of continued progression, work up, evaluation and presumed treatment would be against the standard of service connection. At the April 2017 Board hearing, the Veteran indicated that after injuring his ankle, he continued to have problems with the condition throughout service and thereafter. He stated that after having a cast on for a month in service and then having it removed, he continued to experience trouble with his right ankle. The Board finds an additional VA examination is required to determine the nature and etiology of the right ankle disorder. The September 2007 VA examination was more than ten years ago and relevant evidence has been received since that time, including the Veteran's testimony at the April 2017 Board hearing. Therefore, an additional VA examination and opinion should be obtained. C. Depression The Veteran contends that he currently has depression which had its onset during service. His June 1976 separation examination includes a Report of Medical History where he reported suffering from depression with personal and job related problems. At the April 2017 hearing, the Veteran indicated that he had a sergeant during service that was exceptionally hard on him throughout his time in the Air Force. He stated that he suffers from depression which started approximately one year prior to separating from service, in 1976, and is related to the difficulties with this sergeant. A December 2006 VA treatment record indicated diagnoses of polysubstance dependence and depression, not otherwise specified. The Veteran has not been afforded a VA examination to determine the etiology of his depression. There is evidence that the Veteran currently suffers from depression, and that it may have had its onset in service. Thus, remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim by providing him with a VA medical examination to determine the nature and etiology of any diagnosed depression or other psychiatric disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). D. Records During the April 2017 Board hearing, the Veteran indicated that he received treatment for his back disorder following service at Fort Miley and Highland Hospital, as well as VA treatment, including through the Fresno VA Medical Center (VAMC). Therefore, upon remand, updated VA treatment records should be requested, as well as any outstanding relevant private treatment records. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records since January 2010, including from the Fresno VAMC. 2. Attempt to obtain any relevant treatment records from Fort Miley Military Base. 3. Obtain any outstanding private treatment records, including from Highland Hospital. Notify the Veteran that he may provide releases for VA to obtain any outstanding private treatment records, or that, in the alternative, he may submit any such outstanding records directly to VA himself. All such efforts should be documented in the record. 4. After the above development, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any back and right ankle disorders. All necessary tests should be conducted. The examiner must identify any current low back and right ankle diagnoses. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability had its onset in, or is otherwise related to, his service. The examiner should specifically review the Veteran's STRs and discuss his in-service back injury and treatment, including from May 5, 1975 to May 14, 1975. (b) The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ankle disability had its onset in, or is otherwise related to, his service. The examiner should specifically review the Veteran's STRs and discuss his in-service right ankle sprain resulting in a cast for nearly one month in March 1975. A complete rationale should be provided for all opinions expressed. 5. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed depression. The examiner must identify any current psychiatric diagnoses, including depression. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed depression had its onset in, or is otherwise related to, his service. The examiner should address the June 1976 separation examination which indicated a report of history of depression. The examiner should also address the lay evidence of record, including the Veteran's contentions in the April 2017 Board hearing, and provide a complete rationale for all opinions expressed. 6. Finally, readjudicate the appeal. If any benefits sought remain denied, issue a SSOC and return the case to the Board. 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). These claims 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. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).