Citation Nr: 20023980 Decision Date: 04/08/20 Archive Date: 04/08/20 DOCKET NO. 18-38 708 DATE: April 8, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from August 2001 to August 2004 and received a bad conduct discharge for active duty service from December 2004 to April 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes there is a question as to whether the Veteran timely perfected his appeal. After the RO issued the Statement of the Case on May 22, 2018, the Veteran filed his VA Form 9 (substantive appeal) on July 23, 2018, which is one day late. 38 C.F.R. § 20.302. The RO, however, proceeded to certify the appeal, and the Board notified the Veteran of the same. The Board finds VA’s subsequent actions constitute a waiver of the requirement for filing a timely substantive appeal; thus, the Board will accept jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. The Veteran asserts that his current psychiatric disability, to include PTSD, had its onset during or is otherwise related to his first period of active duty service, to include as a result of his fear of hostile military or terrorist activity while deployed to Iraq from April 2003 to February 2004. See August 2001 to August 2004 DD Form 214, February 2016 VA Form 21-526EZ, February 2016 VA Form 21-0781. In August 2016, the Veteran submitted to a thorough VA examination. The August 2016 VA examiner noted that the Veteran’s submitted stressors would be sufficient for a PTSD diagnosis but expressed concern that the Veteran had not served in Southwest Asia. The examiner went on to explain his concern stemmed from the Veteran’s unreliability as a historian and the fact that the Veteran’s DD Form 214, while noting service in support of Operation Iraqi Freedom, did not demonstrate the award of an Iraqi Campaign Medal. The examiner expressed that if the Veteran’s service in an imminent danger pay area could be confirmed, he would be willing to render an opinion as to whether a PTSD diagnosis was warranted. In this regard, the Board notes the Veteran’s DD Form 214 from his honorable period of service indicates service in Iraq. Moreover, the May 2018 Statement of the Case concedes this service. The RO should have taken steps to verify the Veteran’s service to the examiner and requested an addendum opinion but failed to do so. To the extent that the Veteran argues that the August 2016 VA examiner did not consider his stressor statements, the Board does not agree. See March 2020 Brief. The August 2016 examiner stated that the Veteran’s asserted stressors would sustain a diagnosis of PTSD; however, she declined to make the diagnosis as it was unclear to the examiner if the Veteran served in Southwest Asia. The August 2016 examiner noted that the Veteran had only one noted diagnosis of PTSD in July 2012; however, the Board notes that PTSD was also diagnosed in February 2013 by a private examiner. Accordingly, a new examination and opinion is needed on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). All outstanding VA and private treatment records (Veteran indicated private treatment during his periods of unauthorized absence) should be obtained on remand. 2. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that his current low back disability began during his first period of honorable service. See February 2016 VA Form 21-526EZ, January 2017 Notice of Disagreement (NOD), and July 2018 VA Form 9. The Veteran was treated for a lumbar strain during his initial active duty period. See February 2004 STRs. Then, in June 2004, the Veteran submitted a claim for a low back disability while preparing for discharge from his first and honorable period of service. In July 2004, the Veteran contacted VA and requested that his claim be withdrawn as he intended on enlisting in the U.S. Navy. Upon re-enlistment in the U.S. Army, however, the Veteran continued to complain of mechanical low back pain. See April 2005 STRs. The Veteran submitted to a VA examination of his lower back in June 2016. The examiner opined that the Veteran’s back disability was due to a December 2010 motor vehicle accident that occurred during the Veteran’s second period of service. Notably, despite a request to do so, the examiner failed to address the Veteran’s complaints of back pain and diagnosis of lumbar strain in the Veteran’s first period of service and likewise failed to address the Veteran’s complaints of back pain during his second period of service that the Veteran related to his service in Iraq. Accordingly, the June 2016 VA examiner’s opinion is inadequate, and an addendum opinion must be obtained on remand. All outstanding VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain and associate any outstanding private treatment records, to include private mental health treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disorder. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. The Veteran’s statements during his voided enlistment that he suffered from mental health issues prior to enlistment are not sufficient by themselves to rebut the presumption of soundness as there is no independent medical evidence of such. Following a review of the claims file, the examiner is asked to address the following: (a.) Identify all psychiatric disorders, to include PTSD, adjustment disorder, major depressive disorder, polysubstance abuse, insomnia, and anxiety disorder. If any of the diagnoses are not warranted, please reconcile these findings with the diagnoses of the same in the March 2011, April 2011, February 2012, and July 2012 government treatment records; and February 2013 private treatment records. (b.) If a diagnosis of PTSD is warranted, specify the claimed in-service stressor(s) upon which that diagnosis is based. (c.) For each psychiatric disorder other than PTSD diagnosed, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disorder had its onset in or is otherwise related to his first period of active duty service from August 2001 to August 2004, to include as a result of his asserted stressors related to the veteran’s fear of hostile military or terrorist activity while serving in Iraq. 4. Then, refer the claims file to an examiner for preparation of an addendum opinion as to the nature and etiology of the Veteran’s back disability. No additional examination of the Veteran is necessary unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s back disability had its onset during or is otherwise etiologically related to the Veteran’s first period of active duty service from August 2001 to August 2004, to include as a continuation of the diagnosed lumbar strain on active duty therein. In answering this question, the examiner must address the following: (a.) the February 2004 diagnosis of lumbar strain; (b.) the Veteran’s June 2004 VA claim that his lower back pain was due to his first period of active duty service; (c.) the Veteran’s April 2005 report of chronic back pain he related to the cumulative impact lifting 100-pound artillery shells for 11 months in Iraq while wearing protective gear; and (d.) the February 2011 MRI that detected degenerative changes while reviewing his December 2010 motor vehicle accident. A rationale must be provided for all opinions rendered. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.