Citation Nr: 18145498 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-26 944 DATE: October 29, 2018 REMANDED Entitlement to a rating in excess of 20 percent for chronic spondylolisthesis with spina bifida occult is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression with anxiety, and to include as due to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision. In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. 1. Entitlement to a rating in excess of 20 percent for chronic spondylolisthesis with spina bifida occulta. A rating decision of December 1993 granted service connection for chronic spondylolisthesis with spina bifida occulta. A 10-percent rating and effective date of January 1992 were established. A rating decision of February 2007 increased the rating to 20 percent, effective November 13, 2006. In May 2013, the Veteran filed a claim for rating increase. The Veteran testified at the July 2018 Board hearing that his service-connected back disability has worsened since the most recent VA examination of December 2013. A new examination is therefore warranted to ascertain the current severity of the disability. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). 2. Entitlement to service connection for an acquired psychiatric disability, to include depression with anxiety, and to include as due to service-connected disability. In May 2013, the Veteran filed a service-connection claim for “anxiety due to back condition.” He is service-connected for chronic spondylolisthesis with spina bifida occulta. See rating decision of December 1993. The Veteran has been diagnosed with adjustment disorder with depressed and anxious mood (see VA treatment record of January 2016), adjustment reaction/anxiety, insomnia, and aggravated panic attacks (see VA treatment record of December 2015), and panic disorder with agoraphobia (see VA treatment record of July 2015). The scope of his anxiety claim includes any disorder reasonably encompassed by the description of the claim, symptoms, and all information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran argues that his current psychiatric disability is caused by service-connected back disability. See transcript of July 2018 Board hearing. He also states, however, that his panic attacks began during service, specifically 1986. See December 2013 VA examination report for mental disorders. The December 2013 VA examination for mental disorders diagnosed “GAD with panic.” In the examiner’s opinion, the etiology of the Veteran’s generalized anxiety disorder with panic is unclear. The examiner concluded, based on “consistent” reporting by the Veteran that his anxiety began in the late 1980s, that there is “about a 50/50 chance that the panic disorder began in the military.” The opinion was based solely on the Veteran’s supposedly consistent report of an in-service onset. The Veteran’s reporting cannot be considered consistent. The record reflects that at times he alleges an in-service onset, while elsewhere he attributes his psychiatric disability to the pain of his service-connected back. His May 2013 service-connection claim cited a secondary basis only (“anxiety due to back condition”). Furthermore, the Veteran testified at the Board hearing that his adjustment disorder, anxiety, depression, and anxious mood are due to the pain of his back and not to the incidents cited in the VA examination report, which he denied. See transcript of July 2018 Board hearing. The VA examiner’s sole rationale (that the Veteran has consistently reported that his anxiety began in the late 1980s or early 1990s and is exacerbated by the death of his father and his divorce) is contrary to the record and must be discounted on that basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Furthermore, while the Board may not disregard a medical opinion solely because it is based on history given by a layperson, the Veteran’s perception of his own psychiatric disability over the years is not transformed into competent evidence merely because the transcriber of that reported history is a medical professional. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). An August 2018 letter of Dr. E. T. states that the Veteran has a known history of degenerative lumbar disc status post-surgery and anxiety. The doctor further stated, “Please be aware that [the Veteran] has significant anxiety which is exacerbated by his lower back pain.” Because no rationale was offered for the positive opinion, Dr. E. T.’s letter is insufficient to grant service connection on a secondary basis. See Miller v West, 11 Vet. App. 345 (1998); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Furthermore, Dr. E. T. established no baseline for the severity of the psychiatric disability prior to the alleged exacerbation by service-connected back disability. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Chronic low back pain and cervical radiculopathy were noted by the December 2013 VA examiner as medical diagnoses relevant to the understanding or management of the Veteran’s mental health disorder. Nonetheless, she also remarked that there is no lay or medical evidence that his panic disorder is due to, or related to, his service-connected back condition. See VA examination report of December 2013. The examiner seems to have overlooked the fact that the Veteran’s claim of May 2013 expressly cited his back disability as the cause of his anxiety. Remand is needed for a clarifying medical opinion as to possible secondary service connection. Currently, it is impossible for the Board to reconcile the examiner’s finding that the Veteran’s back disability is relevant to understanding and treating his psychiatric disability with the finding that there is no evidence relating the panic disorder to the back disorder. In light of these deficiencies in the medical opinions of record, the Board cannot make a fully informed decision on the issue of entitlement to service connection for an acquired psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A new VA examination will be ordered. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all relevant treatment records relating to the remanded claims. All records/responses received must be associated with the electronic claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability, to include any associated neurological symptoms. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the back disability and any associated neurological impairment alone and discuss the effect of that disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disability, to include adjustment disorder with depressed and anxious mood. If the Veteran’s medical history indicates that the diagnosis of any mental disorder from May 2013 to the present has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any finding upon examination represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. The examiner must opine as to whether any acquired psychiatric disability at any time since the Veteran’s claim was filed in May 2013, even if now resolved, is at least as likely as not: a. related to an in-service injury, disease, or event; or b. proximately due to service-connected disability, or aggravated beyond its natural progression by service-connected disability, to include chronic spondylolisthesis with spina bifida occulta. If it is at least as likely as not that a service-connected disability aggravates (that is, permanently worsens) an acquired psychiatric disability, the examiner should identify the percentage of disability that is attributable to the aggravation. In such circumstances, the examiner should establish the baseline level of severity of the psychiatric disability by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the psychiatric disability. If it is not possible to provide a baseline level of severity, the examiner should state whether the inability is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A rationale must be provided for all opinions expressed in the report. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Counsel