Citation Nr: 20034563 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 20-19 341 DATE: May 18, 2020 REMANDED The issue of service connection for a low back disability is remanded. The issue of service connection for an acquired psychiatric disorder, to include an adjustment disorder with depressed mood, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1956 to September 1976. He had service in the Republic of Vietnam for which he received, among many other decorations, the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO, denied service connection for a low back disability and an acquired psychiatric disorder. The claim of service connection for an acquired psychiatric disorder has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). 1. The issue of service connection for a low back disability is remanded. The Veteran seeks service connection for a low disability. He has not provided specific details as to how is low back disability is related to his military service or when the onset of his back problems began; however, in a September 2005 VA treatment record, the physician noted that the Veteran had 30-plus years of back pain. In a February 2020 VA opinion, a VA physician’s assistant opined that the Veteran’s diagnosed degenerative disc disease of the lumbar spine was less likely than not due to his military service. The physician’s assistant reasoned that the Veteran’s post-service treatment records did not show back complaints until thirty years following his military service. The VA physician’s assistant attributed the Veteran’s back disability to his age and general wear and tear. In an April 2020 statement, the Veteran’s attorney indicated that the Veteran identified outstanding back treatment records (from 60th surgical Ops Travis Air force Base and the Naval Medical Center San Diego in September 1999 and September 2005) that have not yet been obtained. Moreover, the Veteran’s attorney indicated that since the Veteran’s outstanding back treatment records have not been obtained, the February 2020 opinion is flawed, as the rationale is based on an incomplete record. In this case, the evidence of record contains some treatment records from the 60th surgical Ops Travis Air force Base from 2005; however, the evidence is unclear whether all of the Veteran’s identified treatment records have been obtained. Notably, the Veteran’s service treatment records (STRs) have not been located. There are several Agency of Original Jurisdiction (AOJ) correspondences that indicate that initially the Veteran’s STRs were not located because of “incorrect duty status.” See request for information (October 2017). The AOJ has appeared to verify that the Veteran served on active duty from October 1956 to September 1976. See discharge/retirement or ETS, information report (October 2017 ). To this end, the Veteran’s DD Form 214 from his first period of active duty service has not been associated with the record. Upon remand, another attempt should be made to obtain the Veteran’s STRs and his personnel records, including his DD Form 214 from his first period of active duty service. In sum, a remand is necessary to obtain the Veteran’s identified outstanding back treatment records, STRs, and to afford the Veteran a VA back examination. A VA back examination is necessary to allow a VA examiner to collect a history from the Veteran regarding his back history and for an opinion as to the etiology of the Veteran’s low back disability, with consideration of the September 2005 private treatment record. 2. The issue of service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood, is remanded. The Veteran claims that his acquired psychiatric disorder is due to his combat military service in the Republic of Vietnam. Specifically, he asserts that while his unit was on a mission in Vietnam, most of the service members from his unit were killed. See Veteran’s statement in support of claim for service connection for PTSD (February 2017). A November 2016 private psychiatric report reflects that the treatment provider diagnosed an adjustment disorder with depressed mood. The treatment provider did not provider an etiology opinion; however, the treatment provider indicated that the Veteran had combat-related trauma and that he had flashbacks of his combat service in Vietnam. In December 2017 and February 2020 VA PTSD examination reports, the VA examiners indicated that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD and that he did not have a mental disorder that conforms with the DSM-5 criteria. As the December 2017 and February 2020 VA examiners did not acknowledge the November 2016 private psychiatric report that contained a current acquired psychiatric disorder diagnosis, a remand is necessary to obtain a VA opinion regarding the etiology of the Veteran’s adjustment disorder with depressed mood. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file, the Veteran’s service treatment records and personnel records, including his DD Form 214 from his first period of active duty service. 2. Request the Veteran’s treatment records regarding his back treatment from 60th surgical Ops Travis Air force Base and the Naval Medical Center San Diego from September 1999. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. The examiner should collect and document a history of the Veteran’s low back disability, to include an onset of when his symptoms began. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed degenerative disc disease of the lumbar spine had its onset in service, is otherwise related to service, or manifested within one year of his separation from service. The examiner should address the September 2005 VA treatment record where the physician noted that the Veteran had 30-plus years of back pain. The examiner must provide reasons for each opinion given. 4. Refer the claims file to a psychiatrist or psychologist to determine the etiology of the Veteran’s acquired psychiatric disorder. The Veteran does not need to be examined unless a psychiatrist or psychologist determines it is necessary. The psychiatrist or psychologist should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current acquired psychiatric disability, diagnosed as an adjustment disorder with depressed mood, had its onset in service, or is otherwise related to service, to include as due to the Veteran’s combat service in Vietnam. The psychiatrist or psychologist should address the November 2016 private psychiatric report that reflects that the Veteran had combat related trauma and that he had flashbacks of his combat service. The psychiatrist or psychologist must provide a rationale for the opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.