Citation Nr: 18115331 Decision Date: 07/02/18 Archive Date: 06/29/18 DOCKET NO. 15-10 506A DATE: July 2, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disability (originally claimed as posttraumatic stress disorder (PTSD) and depression) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1978 to September 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2013 rating decision of the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO declined to reopen previously denied claims for service connection for a low back disability; PTSD and depression. The RO also denied entitlement to TDIU. The Veteran appealed this rating action and the RO’s determinations therein to the Board. Jurisdiction of the appeal currently resides with the Winston-Salem, North Carolina RO. In December 2017, the Veteran testified before the undersigned at a video conference hearing conducted via the above RO. A copy of the hearing transcript has been associated with the Board’s Veterans Appeals Co-Locator System (VACOLS). In November 2017, the Veteran executed a new power-of-attorney (VA Form 21-22a), designating Matthew I Wilcut, Attorney as his representative. The Board recognizes this change in representation. The Board has recharacterized the Veteran's claims of entitlement to service connection for PTSD and depression as a claim of entitlement to service connection for an acquired psychiatric disorder, to include these psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Regarding the issues of entitlement to service connection for a low back disability and acquired psychiatric disorder, to include PTSD and depression, the Board notes that the RO originally adjudicated these claims as ones based on the receipt of new and material evidence. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. However, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence. 38 C.F.R. §3.156 (c) (2017). Here, the Board notes that additional military personnel records have been associated with the claims file since the RO’s final April 2008 rating action, and finds that these additional records specifically pertain to the Veteran's claims for service connection for a low back disability and an acquired psychiatric disability, to include PTSD and depression. These additional military personnel records are official service department records and specifically relate to the Veteran's service because they contain evidence that he was on temporary duty assigment and additional evidence as to his military occupational specialty, evidence that is relevant to his claims for service connection for a low back disability and acquired psychiatric disorder, to include PTSD and depression. Id. These records were not associated with the claims folder when VA first decided the claim in April 2008, and are pertinent to the above-referenced claims. (Parenthetically, the Board observes that partial military personnel records were of record at the time of the RO’s final April 2008 rating action and were associated with his service treatment records). As such, the Board finds that new and material evidence is not required with respect to the claims of entitlement to service connection for low back and acquired psychiatric disabilities and it will adjudicate the claims on a de novo basis. Id. The Board finds that prior to further appellate consideration of the claims, additional development is required. Specifically, to obtain outstanding VA treatment records and to schedule the Veteran for additional VA examinations in support of his claims for service connection for a low back disability and an acquired psychiatric disability, to include depression and PTSD. First, a remand is required to obtain outstanding VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). The Veteran testified that he had continued to seek treatment for his low back and psychiatric disabilities from the Robeson Community Based Outpatient Center (CBOC), which was under the umbrella of the Fayetteville, North Carolina VA Medical Center (VAMC). (Transcript (T.) at pages (pgs.) 8, 21)). The Board notes that treatment records from the Robeson CBOC, dated through December 2017 are of record, but more recent reports are absent. As these records might contain evidence as to the etiology of the Veteran’s low back and acquired psychiatric disabilities, they must be secured on remand. Id. Second, a remand is also required to obtain additional VA examinations with opinions. The Veteran seeks service connection for a low back disability. He contends that his current low back disability, diagnosed as degenerative joint disease of the lumbar spine, is the result of having performed high-repetitive activity while entering and exiting helicopters as part of a security detail and machine gun operator during military service. (See VA February 2008 VA spine examination report and T. at pgs. 6-7). Specifically, he maintains that on one occasion, he strained his low back when he fell backwards exiting a helicopter with heavy equipment in 1980. (See February 2008 Spine examination report at pg. 1). The Veteran’s military personnel records, to include his DD 214, reflect that his military occupational specialty (MOS) was a Security Specialist and that he was assigned to the 4th Security Police Squadron at Seymour Johnson Air Force Base (AFB), North Carolina and Missile Security Squadron, F. E. Warren AFB, Wyoming. Thus, the Board finds his contentions of having engaged in high-impact activity exiting and entering helicopters to be consistent with the circumstance, places and types of service as a security specialist. 38 U.S.C. § 1154(a) (2012). The Veteran’s service treatment records (STRs) pertinently reflect that in June 1980, the received treatment for complaints of left lower back pain. The examining clinician noted that the Veteran had spinal meningitis and a pilonidal cyst. In May 1981, the Veteran complained of having had upper back pain for the previous two (2) hours. The examining clinician entered an assessment of muscle sprain. In July 1982, the Veteran received treatment for a lumbar back strain after having mowed his lawn. The examining clinician entered an assessment of lumbar back strain. A September 1982 service separation examination report reflects that the Veteran’s spine was evaluated as “normal.” On an accompanying Report of Medical History, the Veteran indicated that he had had recurrent back pain. Regarding a nexus of the low back disability to military service, there are VA and private opinions that are supportive of the claim. At the close of a February 2008 examination of the Veteran and recitation of his in-service injury with respect to his lumbar spine that is consistent with that reported herein, the VA examiner opined, “It is at least as likely as not that the low back pain this patient presently experiences is causally related to his military work as a heavy machine gun operator while in the Air Force but not fully attributable to the isolated coming out of the helicopter in the Spring of 1980. He many have strained his low back in 1980 but there is no evidence the cfile nor his history for having traumatized the lumbar skeleton.” (See February 2008 VA spine examination report at pg. 11). The Board finds the VA examiner’s favorable opinion that the Veteran’s low back disability is at least as likely as not related to his military work as a heavy machine gun operator to be of reduced probative value because it is unsupported by any rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Other evidence that is support of the claim for service connection for a low back disability includes January 2008 and January 2018 opinions, authored by the Veteran’s chiropractor, Dr. W. A. Dr. W. A. opined, after the Veteran provided a history of having performed strenuous activities during military service, that his degenerative findings of the lumbar spine, “could be” (January 2008) and were consistent with, his past history of strenuous activities. (See January 2008 and January 2018 opinions, authored by Dr. W. A.). The Board finds Dr. W. A.’s January 2008 and January 2018 opinions to be of reduced probative value in evaluating the Veteran’s claim for service connection for a low back disability because they are equivocal (January 2008 opinion) and were provided without any reasoning. Nieves, supra. Thus, in view of the above-cited deficiencies in the February 2008 VA examiner’s opinion and Dr. W. A.’s January 2008 and January 2018 opinions, the Board finds that remand for an additional VA examination with an opinion is required prior to further appellate consideration of the claim for service connection for a low back disability. A remand is also required in conjunction with the Veteran’s claim for service connection for an acquired psychiatric disability, to include PTSD and depression. The Veteran contends that he has PTSD and depression from having witnessed and remained in the aftermath of an August 1981terrorist bombing while on temporary duty from August to October 1981 for Global Shield Exercise at Ramstein AFB, Germany. (T at pgs. 14-15; VA Form 21-0781, Statements In Support of Claim for PTSD, received in late October 2007 and January 2008; and, VA Forms 21-4138, Statements In Support of Claim, received in November 2007 and January 2008). As stated above, the Veteran’s military personnel records, to include his DD 214, reflect that his MOS was a Security Specialist and that he was assigned to the 4th Security Police Squadron at Seymour Johnson Air Force Base (AFB) North Carolina and Missile Security Squadron, F. E. Warren AFB ,Wyoming. More importantly, these records disclose that he was on temporary duty assigment (TDY) until October 1. 1981. (See Military Personnel Records, received into VBMS on June 9, 2009 at pg. 3). The Veteran also submitted numerous statements from fellow servicemates indicating the he was in Ramstein, Germany during and after the bomb exploded in August 1981. (See May 2008 letter, prepared by W. P.; May 2008 letter to VA, prepared by W. P and P. P.; and, Statement in Support of Claim, prepared by W. P., dated in September 2012 (received into the Veteran’s Veterans Benefits Management System electronic record on April 8, 2008). In addition, the Veteran submitted a photograph of himself pictured outside Lichtenstein, Germany, which was date stamped in September 1981). Newspaper articles confirm that on August 31, 1981 a terrorist bomb detonated outside the joint United States North Atlantic Treaty Organization (NATO) command headquarters in Ramstein, Germany. (See news articles in October 2007, late May 2008, and early June 2009). Thus, in view of the foregoing, the Board finds the Veteran’s statements that he was on TDY in Ramstein, Germany when a bomb exploded in the area of the Ramstein AFB to be consistent with the circumstances and places of his service. 38 U.S.C. § 1154(a). The Veteran’s service treatment records pertinently disclose that he was found to have been psychiatrically “normal” during a September 1978 service enlistment examination. A September 1978 Report of Medical History shows that the Veteran reported having had depression and excessive worry. In the Notes section of the report, the examining clinician indicated that the Veteran had depression in January 1978, but that he had not sought treatment from a physician. In June 1979, the Veteran sought treatment for nervousness. At that time, it was noted that he had previously received treatment for nerves and problems adjusting to military life. The examining clinician entered an assessment of adjustment reaction of adult life/transient situation disturbance. In mid-July 1982, the Veteran was seen in the emergency room with ruminations of suicidal and homicidal ideation. In August 1982, the Veteran referred himself to the mental health clinic. It was reported that in late July 1982, an incidence of domestic violence had been reported, that his spouse, children and brother-in-law had returned to North Carolina with relatives; that he had been prescribed antidepressant medication; and, that his prognosis for further military adaptability was guarded. The examining social worker indicated that the Veteran had a history of depression that had been associated with marital discord and that he had been hospitalized on one (1) occasion. The Veteran was diagnosed with a dependent personality disorder and was recommended for administrative separation. A September 1982 service separation examination report reflects that the Veteran was found to have been psychiatrically “abnormal;” he was diagnosed as having a dependent personality disorder. On an accompanying Report of Medical History, the Veteran indicated that he had had frequent trouble sleeping, depression and excessive worry and nervous trouble. In February 2008, a VA psychologist diagnosed the Veteran with depression. The VA psychologist indicated that although PTSD was noted in his claims file that the current (then) examination was positive for depression with intermittent explosive disorder. The VA psychologist did not provide an opinion as to the etiology of the Veteran’s diagnosed depression. (See February 2008 Mental Disorders examination report). The Board notes that the Veteran was administratively separated from service with a diagnosis of dependent personality disorder. Personality disorders are congenital defects that are not diseases or injuries within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected even on the basis of in-service aggravation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 (2017). Defects are defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). Congenital or developmental defects, such as personality disorders, automatically rebut the presumption of soundness and therefore are considered to have preexisted service. 38 C.F.R. §§ 3.303 (c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital or developmental defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, service connection for personality disorders, whether on a direct basis or by aggravation, is prohibited. 61 Fed. Reg. 52,695. However, 38 C.F.R. § 4.127 (2017) provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. Thus, in view of the foregoing, the Board finds that the Veteran should be afforded a VA examination with an opinion that addresses direct service connection for a psychiatric disorder, to include PTSD and whether any diagnosed psychiatric disorder was superimposed on the Veteran's preexisting dependent personality disorder. The Board further notes that that the claim for TDIU is inextricably intertwined with the claims being remanded for further development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As the Veteran currently has no service-connected disabilities, the issues of entitlement to service connection for a low back disability and acquired psychiatric disability, to include depression and PTSD must be resolved prior to resolution of the claim for TDIU. Id. at 183. The matters are REMANDED for the following action: 1. Contact the Fayetteville, North Carolina VAMC and obtain and associate with the claims file all outstanding records of treatment, dated from December 2016 to the present, to specifically include those from the Robeson CBOC. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his attorney. 2. Thereafter, provide the Veteran with an appropriate examination to determine the etiology of all diagnosed low back disabilities. The electronic claims file must be made accessible to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. For each low back disability diagnosed on examination, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had its onset in, or is otherwise related to, active military service; or, if arthritis of the lumbar spine was manifested to a compensable degree within a year of service discharge in September 1982. The examiner must consider the Veteran’s assertions of having injured his lumbar spine from having performed high-impact activities while exiting and entering helicopters as a security specialist and from having strained his low back in 1980. The examiner must also consider the complaints of findings of low back pain; muscle sprain; and lumbar back strain in June 1980, May 1981 and July 1982, respectively. The examiner must also consider a September 1982 service separation examination report reflecting that the Veteran’s lumbar spine was evaluated as “normal,” as well as an accompanying Report of Medical History, reflecting that he had complained of having had recurrent back pain. Finally, the examiner must consider the opinions that are supportive of the claim, authored by a VA clinician in February 2008 and Dr. W. A. in January 2008 and January 2018. 3. Provide the Veteran with an appropriate examination to determine the etiology of all currently diagnosed acquired psychiatric disabilities. The electronic claims file must be made accessible to the examiner in connection with the examination. All necessary studies or tests, including appropriate psychological testing and evaluation, is to be accomplished. The examiner must clearly identify all of the Veteran's currently diagnosed psychiatric disorders. For each identified psychiatric disorder, other than a personality disorder and PTSD, the examiner should provide an opinion as to the following questions: (a) The examiner should state whether there is clear and unmistakable (undebatable) evidence that the identified disorder(s) preexisted the Veteran's active service. (b) If the answer to question (a) is yes, is there clear and unmistakable (undebatable) evidence that the identified disorder(s) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active service? (c) If the answer to question (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the identified disorder(s) first manifested during or otherwise related to active service? (d) If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. If the examiner believes that the Veteran did/does not have a personality disorder, the examiner should state so and explain this opinion fully. The examiner is directed to an August 1982 service treatment records reflecting that that the Veteran was diagnosed as having a dependent personality disorder and that he was recommended for an administrative separation from military service. (e) Regarding PTSD, the RO should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any stressors related to fear of hospital military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment on the link between the current symptomatology and any verified in-service stressor. For purposes of these opinions, the examiner should assume the Veteran is a credible historian. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Ensure compliance with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel