Citation Nr: 18145904 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-25 024 DATE: October 30, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), a panic disorder, and a depressive disorder is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT The evidence shows that the Veteran had an acquired psychiatric disorder during the period at issue, which was caused or aggravated by events during his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to September 1976 and from November 1990 to June 1991. The Veteran served for many years in the reserve with the Air National Guard and Army National Guard. The appellant is the Veteran’s surviving spouse. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and the appellant testified before a Veterans Law Judge (VLJ), Joy McDoland, at an October 2015 hearing before the Veteran’s death. VLJ McDoland is no longer with the Board, and the appellant indicated in February 2018 that she does not wish to appear at another Board hearing. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). A review of the record shows that the Veteran was diagnosed with several current disabilities during the period at issue including panic and depressive disorders. See, e.g. September 2013 Psychiatry Follow-up notes from Iowa City VA Healthcare System. Additionally, the Board notes there is evidence the Veteran has suffered from PTSD although VA was unable to verify the Veteran’s claimed PTSD stressors (including exposure to combat, dead bodies, and wounded men during his service in Vietnam and the Gulf War). See May 2015 VA PTSD examination (finding the Veteran met some but not all criteria for PTSD under the DSM-5); August 2010 VA PTSD examination (noting the Veteran may have met the criteria for PTSD in the past); November 2009 VA Memorandum (indicating VA needed additional information from the Veteran to verify his stressors). Aside from the Veteran’s testimony about his claimed PTSD stressors, the Board notes the Veteran reported and was treated for psychiatric complaints on multiple occasions during service during the Vietnam War, and his military personnel records show he served in an imminent danger pay area in southwest asia. See, e.g., March 1975 service treatment records. VA examiners have not confirmed a diagnosis of PTSD during the period at issue, but they have not completely discounted it. The VA examiners have acknowledged the Veteran has several diagnosed psychiatric illnesses under the DSM-IV an DSM-5. Ultimately, the Board finds the evidence shows the Veteran had current mental disabilities, which may be related to his reported mental health complaints during service and his accounts of exposure to traumatic events. The Board notes (as the VA examiners have noted) that the Veteran’s flare-ups of relevant symptoms over the years often occurred in the context of substantial situational stressors such as the death of a family member. However, the VA examiners indicated that the Veteran’s symptoms may be at least partially related to traumatic events during the Veteran’s service. Additionally, A.S., M.D. indicated in a September 2003 opinion that the Veteran had a panic disorder with rigid thinking, which is further chiseled by his military experience where the Veteran has been trained to be guarded and has maintained a form of fight-or-flight type reaction. Overall, while the opinions all indicate the Veteran’s mental health has been negatively impacted by situational stressor over the years, they support a finding that the Veteran’s current mental condition is at least partially caused by events during his military service. Affording the Veteran the benefit of the doubt, the Board finds that he had a current psychiatric disorder related to events during his military service. REASONS FOR REMAND The Veteran’s service treatment records show he was treated for lower back pain in January 1976. An August 2001 Radiology Report from Perry Memorial Hospital revealed mild degenerative changes in the Veteran’s thoracic spine. The Veteran’s attorney requested that VA afford the Veteran an examination to determine whether his claimed back disability is related to his service, but the Veteran was not afforded such an examination prior to his death. See February 2015 letter from the Veteran’s attorney. Additionally, the Veteran indicated at his October 2015 hearing that there may be outstanding relevant records of treatment by a chiropractor in the late 1990s in Clarksville, TN. On remand, the AOJ should attempt to obtain any outstanding relevant treatment records before obtaining an opinion from an appropriate VA examiner on whether the Veteran’s claimed back disability is related to his military service. The AOJ should ensure that the VA examiner’s opinion is based on a review of the claims file including many treatment records received since the last adjudication of these matters by the AOJ in the May 2015 Statement of the Case. The matter is REMANDED for the following action: 1. The AOJ should contact the appellant and her representative and request their assistance in identifying any outstanding relevant records including records from a chiropractor in Clarksville, TN. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding records with the Veteran’s claims file, the AOJ should obtain an opinion from an appropriate VA examiner on whether the Veteran’s claimed back disability was related to his military service. The AOJ should provide the examiner with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiner follows these directives: (a) The VA examiner should identify all disabilities affecting the Veteran’s back (e.g. the thoracolumbar spine) based on a review of the claims file. (b) For each disability identified, the examiner should opine whether the disability was at least as likely as not (50 percent or greater probability) caused or aggravated by the Veteran’s military service to include documented treatment for lower back pain following a reported injury during his active duty military service in January 1976. The examiner should explain why or why not. (c) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the appellant and current representatives. After the appellant has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel