Citation Nr: 18149683 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-42 703 DATE: November 13, 2018 ORDER Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a bilateral hip disability, to include as secondary to low back disability, is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. The only pertinent medical opinion of record (in October 2013) indicates the Veteran was diagnosed with a lumbar strain in January 1971 after falling down a hill; notes reports of intermittent back pain throughout the remainder of his service thereafter; and notes a current diagnosis of fractured spine. 2. A subsequent December 2013 addendum opinion clarified that the fracture was a par interarticularis fracture that most likely occurred with a January 1971 injury that was improperly diagnosed as a strain; the examiner explained such fractures heal as a fibrous union without pain initially (thus explaining why the Veteran’s separation examination was normal) but, if not properly treated, would have manifested as back pain later in life (just as the Veteran reports). 3. Although the Board acknowledges that the RO correctly noted that there is no documented January 1971 back injury in the Veteran’s service records, a review of those records shows only one back injury (in June 1972) that is highly consistent with that described in the VA examination report (i.e., the Veteran hurt his back when falling down a “cliff” and was diagnosed with a lumbar strain); moreover, one of the notes describing the fall includes several other date stamps in close proximity, including one that appears to be from January 1970 or 1971. 4. Accordingly, the Board finds the evidence is at least in relative equipoise as to whether the VA examiner was referring to the June 1972 injury described above and mistakenly identified it as a January 1971 injury, as well as whether the Veteran has a current low back disability that was incurred during active military service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1970 to October 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision. In October 2018, a videoconference hearing was held before the undersigned. For the reasons discussed above, the Board grants service connection for low back disability in full, obviating any need for further discussion at this time. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disability, to include as secondary to low back disability, is remanded. Since the Veteran’s October 2013 VA examination (with December 2013 addendum opinion), he has provided sworn testimony that he was referred to a neurologist who diagnosed lumbar radiculopathy affecting his hips secondary to his lumbar fracture. Notably, he did report radicular or radiating low back pain during the October 2013 low back examination, but this was not addressed during the hip examination. Moreover, it is notable that the Veteran continues to allege hip symptomatology despite the prior VA examiner’s finding that there was no current hip disability, recent case law requires that VA also consider the possibility that there is hip pathology that nonetheless causes functional impairment of earning capacity). Consequently, the Board finds that a new examination that adequately considers the Veteran’s allegations is needed. 2. Entitlement to service connection for an acquired psychiatric disability is remanded. First, the Board notes that there does not appear to be any indication that the appropriate development was conducted to verify the Veteran’s alleged stressors in service. Moreover, the negative August 2013 VA opinion is based on a finding that “[t]here is no military records [sic] of him having Manic Depressive Disorder or a mood disorder,” despite the fact that the physician’s notes on the report of medical history at separation explicitly note depression or excessive worry. Finally, although that same VA examiner found the Veteran did not meet the diagnostic criteria for posttraumatic stress disorder (PTSD), more recent records include a letter from a licensed social worker indicating he does have PTSD related to multiple traumatic events in service. Therefore, the Board finds a new examination is also needed. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The matter of entitlement to TDIU is inextricably intertwined with the others on appeal, as the result thereof will materially affect the scope of the inquiry into the TDIU claim. Thus, a final adjudication in this matter must be deferred at this time. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Ask the Veteran to identify, as best as possible, more specific details (including date, location, unit assignment, etc.) surrounding each psychiatric stressor in service. Then, conduct exhaustive development to attempt to verify the Veteran’s alleged stressors, to include obtaining copies of all pertinent documents (e.g., service personnel records, unit histories, duty logs, etc.) before forwarding the record to the Joint Services Records Research Center (JSRRC) for further inquiry. All efforts to verify the stressors must be documented for the record, as well as the reason for any unavailability of records encountered. The results of this inquiry must be documented for the record as well. 3. Schedule the Veteran for an examination by an orthopedist to determine the nature and etiology of any hip disability found. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all hip disability entities found, to include any neurological or radicular disabilities affecting the hips. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. If no diagnosis is found, the examiner must also SPECIFICALLY CONSIDER whether the Veteran has hip pathology causing functional impairment that is not attributable to any diagnosable disability. (Notably, a recent Veterans Court decision held that pain, even without a diagnosis, does count as a disability for VA compensation purposes if the pain causes functional impairment of earning capacity). (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include the conceded spinal fracture therein. (c.) For each disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY his current service-connected low back disability (spinal fracture residuals). The examiner should also opine as to the occupational impact of any hip disabilities diagnosed and his service-connected low back disability, to specifically include identifying the types of work they would preclude and those that would remain feasible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Schedule the Veteran for an examination by a psychiatrist or psychologist to determine the nature and etiology of any psychiatric disability entity found. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all psychiatric disability entities found, to specifically include noting whether he meets the diagnostic criteria for PTSD. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include the alleged stressors therein. For purposes of this examination only, the examiner should assume the credibility of these allegations. The examiner should also specifically consider whether any current psychiatric disability is related to notations of psychiatric symptoms in service (i.e., depression and excessive worry) and whether his documented drug use in service may be indicative of psychiatric symptomatology therein (e.g., an attempt to cope by self-medicating). The examiner should also opine as to the occupational impact of the disabilities diagnosed, to specifically include identifying the types of work they would preclude and those that would remain feasible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. Then, arrange for any additional development deemed indicated—including (but not limited to) arranging for additional opinions regarding occupational impact of disabilities deemed service-connected or referring the Veteran’s case for consideration of extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b)— before readjudicating the matters on appeal. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel