Citation Nr: 20046743 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-45 684 DATE: July 13, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a cervical spine disorder is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 2006 to February 2007, from April 2007 to October 2007, and from November 2007 to May 2008. She had additional active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the North Dakota National Guard during the period from December 2005 to November 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Fargo, North Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA). In correspondence received in October 2019 the Veteran withdrew her request for a Board hearing. She provided additional evidence in support of her PTSD claim in December 2019 and waived Agency of Original Jurisdiction (AOJ) consideration. The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) held that an initial claim of entitlement service connection for PTSD should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. Therefore, the issue on appeal as to this matter has been revised to include consideration of the other applicable diagnoses of record. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The Veteran contends that she has PTSD as a result of sexual harassment by a supervisor during service. Although she provided a copy of an October 2019 medical opinion from a private psychologist noting that she met the criteria for a diagnosis of PTSD and that her symptoms had been present and worsening since 2008 at the time of the first stressor, the examiner appears to have based the opinion on an inaccurate assumption that the Veteran had military service from December 2005 to November 2013. The available record indicates that after May 2008 the Veteran had brief periods of ACDUTRA and INACDUTRA as a member of the North Dakota National Guard, but that her full-time employment position with the North Dakota National Guard was not military service for VA purposes. In fact, VA correspondence indicates that adjustments to her VA compensation payments during this period only considered training days not full-time employment. It is also noted that an October 2014 rehabilitation needs inventory shows she received a disability retirement after a spinal fusion, presumably awarded by a government entity other than as based upon a period of federal military service. Therefore, the Board finds that additional development is required to clarify the Veteran’s status and/or authorized military service associated with her employment with the North Dakota National Guard and, if necessary, to obtain an additional medical opinion addressing any stressor events associated with military service for VA purposes. 2. Entitlement to service connection for a cervical spine disorder, to include as a result of a service-connected disability, is remanded. The Veteran contends that she has a cervical spine disorder as a result of active service, specifically as a result of a service-connected lumbar spine disability. Service connection has been established for degenerative disc disease of the lumbar spine at L5-S1. She is also service connected for radiculopathy of the right lower extremity and degenerative arthritis of the right hip. Although an April 2015 VA examiner found the Veteran’s cervical was less likely proximately due to or the result of her service-connected condition, no opinion was provided as to aggravation. The United States Court of Appeals for Veterans Claims (hereinafter “the Court”) has held that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Therefore, additional development as to this matter is required for an adequate determination. The matters are REMANDED for the following action: 1. Appropriate action must be taken to clarify the Veteran’s status and/or authorized military service associated with her employment with the North Dakota National Guard. Pertinent treatment records associated with any disability retirement awarded by a government entity other than as based upon a period of federal military service should be obtained and added to the record. 2. Upon completion of directive #1, if necessary, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed of PTSD is not rendered, the examiner must provide an explanation along with an identification of the missing criteria. If a diagnosis of PTSD is made, the examiner must opine whether it is at least as likely as not related that the PTSD is the result of a verified in-service stressor. The examiner must opine whether the evidence of record, including the Veteran’s lay statements, the October 2015 statement made by her father, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during a qualifying period of military service, the examiner must opine whether any PTSD is at least as likely as not related to the personal assault. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 3. From an appropriate clinician obtain an opinion an opinion as to whether it is at least likely as not that the Veteran’s cervical spine disorder underwent any incremental increase in disability, regardless of its permanence, due to the service-connected right foot disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.