Citation Nr: 18149540 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-32 017 DATE: November 9, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depression is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed June 2005 rating decision, the Veteran was denied entitlement to service connection for PTSD. 2. In an unappealed September 2013 rating decision, the Veteran was denied entitlement to service connection for anxiety/stress, now claimed as depression. 3. The evidence associated with the record subsequent to the June 2005 and September 2013 rating decisions is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSION OF LAW New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from September 1975 to May 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that the claim identified above as the claim to reopen entitlement to service connection for a psychiatric disability was adjudicated by the Agency of Original Jurisdiction as a claim to reopen the previously denied claim of entitlement to service connection for PTSD. However, given the complex nature of mental health disabilities, the multiple mental health diagnoses of record, and the several prior denials of entitlement to service connection for those various disabilities; the Board has recharacterized the issue on appeal as a claim to reopen a previously denied claim of entitlement to service connection for a psychiatric disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has asserted that he is unable to work as a result of his service-connected back disability. As such, the Board has taken jurisdiction of the claim of entitlement to service connection for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Claim to Reopen – Acquired Psychiatric Disability In the June 2005 rating decision, the Veteran was denied entitlement to service connection for PTSD on a finding that the Veteran did not have PTSD that was related to his active service. The Veteran did not appeal that decision. In the September 2013 rating decision, the Veteran was denied entitlement to service connection for anxiety/stress now claimed as depression based on a finding that the Veteran did not have a diagnosis of a mental disorder and he did not have a current disability related to service. The Veteran did not appeal that decision. The pertinent evidence received since the June 2005 and September 2013 rating decisions includes medical evidence indicating that the Veteran has current mental health diagnoses that may be etiologically related to his active service. In this regard, a March 2015 VA treatment record indicates that the Veteran has depressive disorder and nightmares related to combat training during active service. That evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. Accordingly, reopening of the claim of entitlement to service connection for an acquired psychiatric disability is warranted. REASONS FOR REMAND 1. Service Connection – Acquired Psychiatric Disability The Board notes that the Veteran has consistently asserted that he has an acquired psychiatric disability as due to his active service. Indeed, the Veteran’s service treatment records show that the Veteran was admitted into the psychiatric unit during his active service in May 1979. In light of the Veteran’s statements and his current diagnoses of depression and anxiety with PTSD symptoms, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present acquired psychiatric disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Increased Rating– Low Back Disability The Board notes that in a recent decision the United States Court of Appeals for Veterans Claims (Court) found that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In other words, if there is not a discussion of those measurements in a VA examination report, the examination is inadequate, unless the examiner determines that those range of motion testing listed could not be conducted. Correia v. McDonald, 28 Vet. App. 158 (2016). A review of the record shows that the Veteran was most recently afforded a VA examination for his low back disability in May 2015. A review of those examination reports fails to show findings that are consistent with the holding in Correia. Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his service-connected low back disability. 3. TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claim currently on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination with a psychologist or psychiatrist to determine the nature and etiology of any currently present psychiatric disability. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, and proximate thereto. Then, for all identified disabilities, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset during active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran’s statements regarding the onset and continuity of his psychiatric symptoms. The examiner must address the May 1979 inpatient psychiatric treatment the Veteran received during his active service. The rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected low back disability. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. In assessing the severity of the low back disability, the examiner should test for pain on both active and passive motion, in weight-bearing and nonweight-bearing. 4. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel