Citation Nr: 18145005 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-11 251A DATE: October 25, 2018 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 31, 2015, is remanded. Entitlement to an initial evaluation in excess of 50 percent for PTSD on or after December 31, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2104 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board notes that the Veteran has also perfected an appeal regarding the issues of entitlement to service connection for sleep apnea and to an increased evaluation for bilateral hearing loss. However, in a January 2018 VA Form 9, he requested a videoconference hearing before the Board in connection with those issues. As a hearing has not yet been scheduled, the Board will not address those issues at this juncture. Initially, the Board notes that additional relevant evidence, including VA medical records, has been received since the RO last adjudicated the case in a statement of the case (SOC). There is an automatic waiver for any evidence submitted by the Veteran; however, such a waiver does not apply for evidence obtained by VA. As such, the additional evidence must be referred to the Agency of Original Jurisdiction (AOJ) for review and preparation of a SSOC, if a grant of the benefit sought is not made. Moreover, in a February 2015 letter, a VA social worker indicated that the Veteran has been receiving treatment at a Vet Center since October 2011. There are also VA medical records noting treatment at the Vet Center. However, the claims file does not appear to contain records of such treatment. Thus, on remand, the AOJ should attempt to obtain any outstanding treatment records, including records from the Vet Center. The Board further notes that the Veteran was afforded a VA examination in May 2013 in connection with his claim for service connection for a back disorder. However, the examiner addressed the question of whether a back disorder was incurred in or otherwise related to service rather than whether any preexisting back disorder was aggravated by service. In this regard, the Veteran’s November 1966 enlistment examination noted an abnormal clinical evaluation of the spine. Specifically, it was noted that he had dorsal kyphosis. Thus, the presumption of soundness does not apply for that diagnosis. Moreover, the Board notes that additional evidence and argument has been submitted that was not considered by the May 2013 VA examiner. Therefore, the Board finds that an additional medical opinion is needed to determine the nature and etiology of any back disorder that may be present. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD and back. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims files. The AOJ should also secure any outstanding VA treatment records, to include any records from a Vet Center dated since 2011. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions or statements by the Veteran. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted that the presumption of soundness does not apply for dorsal kyphosis, as the condition was noted at the time of the Veteran’s enlistment examination. The examiner should also identify all current back disorders. a. If the Veteran is found to have dorsal kyphosis, the examiner should state whether is at least as likely as not that the preexisting disorder was aggravated by his military service. In so doing, he or she should address whether there was any increase in the severity of the condition during service. If so, the examiner should also discuss whether any increase was due to the natural progression of the condition or whether it represented a chronic worsening of the underlying pathology. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. b. For any diagnosis identified other dorsal kyphosis, the examiner should clearly and unmistakably preexisted his military service. (The term "clear and unmistakable" means that the evidence is undebatable.) If so, he or she should state whether there was an increase in the severity of the preexisting disorder during this period of service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that the disorder did not clearly and unmistakably preexist the Veteran's service, he or she should provide an opinion as to whether it is at least as likely as not that the Veteran's current back disorder manifested in service or is otherwise is causally or etiologically related to his military service, to include any injury and symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the current severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence, to include any evidence received since the January 2016 SOC. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel