Citation Nr: 18135167 Decision Date: 09/17/18 Archive Date: 09/14/18 DOCKET NO. 15-29 128 DATE: September 17, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for acquired psychiatric disability, to include schizophrenia, bipolar disorder, panic disorder, depression, and posttraumatic stress disorder (PTSD); is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia, bipolar disorder, panic disorder, depression, and PTSD is remanded. FINDINGS OF FACT 1. A July 1983 administrative decision the claim of entitlement to service connection for a nervous condition was not reopened. 2. Evidence received since the July 1983 administrative decision 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 to reopen service connection for acquired psychiatric disability. 38 U.S.C. § 5108 (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 1968 to September 1971, and active military service from October 1970 to September 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the issue of entitlement to service connection for a back disability was originally adjudicated as requiring new and material evidence. However, the Board notes that the Veteran’s back disability was only considered for purposes of nonservice-connected pension and was not considered for service connection purposes. As such, the issue of entitlement to service connection for a back disability is not subject to reopening and the issue on appeal has been recharacterized accordingly. Additionally, the Board notes that the given the multiple diagnoses of psychiatric disabilities of record, the Board has broadened its consideration pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence – Acquired Psychiatric Disorder In an October 1971 rating decision, the Veteran was denied entitlement to service connection for latent schizophrenia based on a finding that it existed prior to his active service. The Veteran did not appeal that decision. A July 1983 administration decision denied reopening a claim of entitlement to service connection for a nervous condition based on a finding that new and material evidence had not been presented. The Veteran did not appeal that decision. The evidence added to the record since the July 1983 administrative decision includes medical evidence and lay testimony indicating that the Veteran has a psychiatric disability that had its onset during his active service, or is otherwise related to his service. As such, the Board finds that the additional evidence is new and material. It has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran’s acquired psychiatric disability. Accordingly, reopening of the claim of entitlement to service connection for a psychiatric disability is warranted. To that extent only, the appeal is granted. REASONS FOR REMAND The Board finds that additional development is required for proper consideration of the Veteran’s claims. Service Connection – Back Disability The Board seeks clarification on the current nature and etiology of the Veteran’s back condition. An October 2012 Back Disability Benefits Questionnaire (DBQ) prepared by a private physician shows diagnoses of spondylosis with myelopathy, intervertebral disc (IVD) prolapse, and sciatica. VA treatment records, including a November 2017 kinesiotherapy note, show that the Veteran has complained of and been treated for low back pain. Further, the medical record implicates questions relating to congenital versus acquired conditions, disease versus defect, and application of the presumptions of soundness and aggravation. For instance, lordosis is noted on the Veteran’s September 1968 entrance examination report. Post-discharge treatment records mention signs of spina bifida occulta and congenital lumbosacral abnormality, as reflected in a 1973 radiographic report and a March 1976 orthopedic consultation. Presently, there is no VA examination or medical opinion of record necessary for proper adjudication. As such, the Veteran should be afforded an examination to determine the nature and etiology of any currently present back disability. Service Connection – Acquired Psychiatric Disability The Board notes that the medical evidence of record shows that the Veteran has been diagnosed with multiple psychiatric disabilities during the pendency of the appeal. Further, there is an indication from the record that the Veteran was diagnosed with a psychiatric disability in 1971, while he was in active service. As such, a VA examination is warranted to determine the nature and etiology of all currently present psychiatric disabilities. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA treatment and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature of any current back disability. The examiner must review the claims file and must note that review in the report. The Veteran’s lay testimony alone is not a sufficient basis to determine that he had a low back disability that preexisted his active service. Based upon the examination results and the review of the record, the examiner should identify all current diagnoses of back disabilities and make a determination as to whether the identified back disabilities are a disease, a defect, or are the result of an injury. In determining whether a condition is a defect, as opposed to a disease or injury, the examiner should consider that the term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term “defects” are defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Once all diagnoses have been identified and characterized as a disease, defect, or the result of an injury, the examiner should provide the following opinions: Did the Veteran have a low back disability (a disease or a disability resulting from injury ONLY, not defect) that clearly and unmistakably existed prior to his active service? If so, was any pre-existing low back disability (a disease or a disability resulting from injury ONLY) clearly and unmistakably NOT aggravated during active service? For any disability determined to be a defect, is it at least as likely as not (50 percent or better probability) that the Veteran developed superimposed low back pathology as a result of his active service? With regard to any diagnosed low back disability not found to clearly and unmistakably exist prior to the Veteran’s service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the disability had its onset during the Veteran’s active service, or is otherwise related to such service. In forming the opinions, the examiner should discuss the medical significance, if any, of: lordosis noted on the Veteran’s 1968 entrance examination report, the June 1973 radiographic report and the March 1976 orthopedic consultation noting congenital abnormalities, and the Veteran’s assertions of back pain during service and injury sustained after falling on ice. A complete rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present psychiatric disability. The examiner must review the claims file and must note that review in the report. The Veteran’s lay testimony alone is not a sufficient basis to determine that he had a psychiatric disability that preexisted his active service. Based on the examination results and the review of the record, the examiner should identify all diagnoses of psychiatric disabilities present during the pendency of the appeal, or proximate thereto. Once all diagnoses have been identified, the examiner should provide the following opinions: Did the Veteran have a psychiatric disability that clearly and unmistakably existed prior to his active service? If so, was any such preexisting disability clearly and unmistakably NOT aggravated by active service? With regard to any diagnosed psychiatric disability not found to clearly and unmistakably exist prior to the Veteran’s service, the examiner should opine as to whether it is at least as likely as not (50 percent or better probability) that the disability had its onset during the Veteran’s active service, or is otherwise related to such service. A complete rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sami, Arooj