Citation Nr: 18139914 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-19 050A DATE: October 1, 2018 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service in the Army Reserve from March 1980 to June 1980, in the Air Force from December 1982 to May 1987; and had additional Reserve service and active service in the Air National Guard from May 1987 to September 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 1. Entitlement to service connection for a back and left knee disability is remanded. The Veteran contends that he is entitled to service connection for a back and left knee disability because he has experienced ongoing pain since service. He states that his job in the unit supply required him to frequently lift heavy equipment. See May 2016 VA Form 9. On the March 1987 in-service examination, the examiner noted that the Veteran had recurrent back pain secondary to heavy lifting which he treated with ice, massage and unknown medications. A March 2015 VA treatment note indicates that the Veteran was diagnosed with low back pain and recommended to use a heating pad, back brace and TENS unit. In an April 1980 service treatment record, the Veteran complained of left knee pain for the previous 3 to 4 days. There was no report of trauma or injury to the knee. As there is evidence of current back and left knee pain which may be a disability, see Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018)(pain alone may qualify as a disability), in-service incidents, and an indication that the current manifestations may be related to service, the Veteran should be scheduled for a VA examination to determine the likely etiology of his back and left knee pain. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that he is entitled to service connection for PTSD because he believes it is related to him witnessing a plane exploding during service in 1989. One of his friends was killed in the explosion and he experiences guilt for the explosion because he was in charge of ordering the part that malfunctioned. The RO confirmed that the event occurred while the Veteran was stationed in Alaska. The question then turns to whether the Veteran has a diagnosed mental health disability that is related to this in-service incident. An undated letter from V.D., a clinical therapist at Multi County Counseling, indicates that the Veteran suffers from PTSD related to his service. Specifically, V.D. opines that the incident involving the fatal explosion of an Air Force tanker in 1989 caused the Veteran’s PTSD. There is also an April 2015 mental health assessment summary from V.D. where she indicates that it is recommended that the Veteran be referred for mental health treatment in individual therapy sessions to address his issues of PTSD. The Veteran was afforded a VA examination in August 2015 where the examiner opined that it was less likely than not that the Veteran suffered from PTSD under the DSM-5 due to the absence of symptoms of emotional distress or PTSD subsequent to the 1989 event. The examiner opined that the only mental health disability the Veteran suffered from was alcohol abuse. He cited to the lack of mental health complaints in 1982 and 1987. First, the Board finds that a remand is necessary to obtain a medical opinion. The PTSD diagnosis and positive nexus opinion is not from a psychologist or psychiatrist, as required by VA regulations. The August 2015 VA examiner’s rationale for a negative nexus opinion was based on lack of mental health symptoms from a time frame which preceded the stressor. Therefore, on remand, the RO should obtain an opinion from a VA psychologist or psychiatrist regarding the etiology of any diagnosed mental health disorders. Second, the August 2015 VA examiner also noted that the Veteran has been incarcerated for 17 years and was currently on probation. The mental health assessment from V.D. was a part of his probation assessment. It is unclear whether the Veteran was treated for any mental health problems while incarcerated. Therefore, the Board finds that a remand is necessary to obtain the Veteran’s prison health records. Third, on the Veteran’s May 2016 VA Form 9, he stated that he has physical documentation to support that he suffers from anxiety attacks and “there is no doubt in [his] mind that [he has] some type of acquired psychiatric disorder, to include PTSD and anxiety.” As noted above, V.D. recommended the Veteran for further therapy. It is unclear if the Veteran underwent individual therapy. On his July 2015 VA Form 21-0781, he also indicated that he “continues to get counseling on this matter.” On remand, any missing private treatment records related to mental health treatment should be obtained. Specifically, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records. Finally, as it appears the Veteran may receive treatment at a VA facility, the RO should obtain all up to date records. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide a medical records release form in order for VA to attempt to obtain his complete prison medical treatment records from his times of incarceration. See August 2015 VA examination report where the Veteran reported 17 years of incarceration. A copy of any request(s) sent to the Veteran, and any reply, to include a completed medical records release form, should be associated with the claims file. 2. Contact the Veteran and request that he provide or authorize the release of any private treatment records from any provider who treated him for his mental health symptoms (See April 2015 recommendation from V.D.; July 2015 VA Form 21-0781; May 2106 VA Form), as well as any other records, not already of record, that are relevant to his claim. If, after making reasonable efforts to obtain non-VA records the Agency of Original Jurisdiction (AOJ) is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Obtain up to date VA treatment records. 4. Then, schedule the Veteran for a VA examination to determine the etiology of his low back and left knee pain. The claims file and a copy of this remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should also take a full history from the Veteran and provide an opinion on the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s low back pain was incurred in or otherwise related to service, to including due to the frequent heavy lifting of equipment. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee pain was incurred in or otherwise related to service. The examiner’s attention is directed to, but not limited to the following: (a) A March 1987 in-service examination where the examiner noted that the Veteran had recurrent back pain secondary to heavy lifting which he had treated with ice, massage and unknown medications; (b) A March 2015 VA treatment note indicates that the Veteran was diagnosed with low back pain and recommended to use a heating pad, back brace and TENS unit; and (c) An April 1980 service treatment record, the Veteran complained of left knee pain for the previous 3 to 4 days. A complete rationale for all opinions must be provided. 5. Then, schedule the Veteran for a VA examination, by a VA psychiatrist or psychologist, to determine the etiology of any diagnosed mental health disability. The claims file and a copy of this remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. The examiner should also take a full history from the Veteran and provide an opinion on the following: A diagnosis of PTSD should be confirmed or ruled out. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. If a PTSD diagnosis is made, the examiner must opine (a) whether any currently diagnosed PTSD can be related to any corroborated stressors reported by the Veteran and (b) whether these stressors are adequate to support a PTSD diagnosis. The examiner should address all lay and any medical evidence of record. With respect to any other acquired psychiatric disorders currently present or present at any time during the pendency of this claim, the examiner should provide an opinion with respect to each disorder as to whether it is at least as likely as not (50 percent or better probability) that the disorder is etiologically related to the Veteran’s service. A complete rationale must be provided for all opinions. The examiner’s attention is directed, but not limited to, the following: (a) the Veteran’s May 2016 VA Form 9 where he stated that he has physical documentation to support that he suffers from anxiety attacks; (b) V.D.’s 2015 diagnosis of PTSD and referral for individual counseling to address the PTSD symptoms; (c) he Veteran’s stressor of witnessing the fatal explosion of a tank while stationed in Alaska has been corroborated MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel