Citation Nr: 21003545 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-18 889A DATE: January 21, 2021 ORDER Service connection for a cervical spine disorder (neck condition) is denied. REMANDED Service connection for hypertension is remanded. Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (“PTSD”) and depression is remanded. FINDING OF FACT An April 2020 VA examiner opined that the Veteran’s neck condition was not causally related to his service. The Veteran’s service treatment records are absent for any reports of a neck injury. Records from the Butler Spinal Clinic indicate that his neck pain began when he fell off a house in 1971. CONCLUSIONS OF LAW The criteria for service connection for a neck condition have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1966 to July 1968. He served in Vietnam from August 1967 to July 1968. The Veteran died in October 2012. In April 2013, the Veteran’s surviving spouse was substituted as the appellant in the current appeal. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2013 the appellant testified at a Board hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. In July 2020, the Board notified the appellant that the VLJ who conducted her January 2013 hearing was no longer at the Board and asked her whether she would like to appear before another VLJ at a new hearing. The record reflects that the appellant did not wish to appear at another Board hearing and requested that the Board consider the case on the evidence of record. In July 2014, these matters were remanded for further development. Service connection for a neck condition is denied. Legal Criteria Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Factual Background A September 2010 VA treatment note indicates that the Veteran had multilevel degenerative disk and facet disease of the neck with multilevel neuroforaminal stenosis in the mid to lower cervical spine. A June 2006 note from the Butler Spinal Clinic indicates that Veteran was a construction worker who fell off his house 35 years prior in 1971 and that he had neck pain ever since. A September 2006 buddy statement from a fellow servicemember indicates that the Veteran told him that he injured his head during service after running into a bunker. The Veteran’s service treatment records are absent for any reports of a head or neck injury. At the Veteran’s separation examination, he did not indicate that his head or neck were abnormal. An April 2020 VA physician opined that it was less likely than not that the Veteran’s neck condition was causally related to his service. As a rationale, the examiner explained that there is no available medical evidence of a head injury when the Veteran was in service and that his separation examination indicated he had no health complaints at that time. Analysis The Board finds that the preponderance is against a finding that the Veteran’s neck condition is causally related to his service. The Veteran’s service records are absent for any reports of a neck injury. The Veteran’s Buter Spinal Clinic records indicate that his neck pain began when he fell off a house in 1971. The Board assigns probative value to the April 2020 VA examiner’s opinion because they acknowledged that they reviewed the claims file and supported their opinion with a rationale. In addition, the Board finds it probative that the evidence supports a specific alternative cause for the Veteran’s neck condition; that is, the 1971 post-service injury. The Board acknowledges that there is a buddy statement in the record that the Veteran reported a head injury during service which the appellant believes was related to his neck condition. However, the lay beliefs of the appellant (or the Veteran or his buddy) in this regard cannot establish a causal link between the neck condition on appeal and an injury that occurred decades in the past because this is a complex medical question beyond any readily observable cause and effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Therefore, the evidence does not support a finding that any possible in-service head or neck injury was the cause of the late Veteran’s neck condition. REASONS FOR REMAND Service connection for hypertension is remanded. An October 2011 VA treatment note indicates that the Veteran was diagnosed with hypertension in 2003. An April 2020 VA examiner opined that it was less likely than not that the Veteran’s hypertension was causally related to service. As a rationale, the physician explained that there was no evidence of hypertension during service. The examiner noted that the first document found to confirm hypertension was not until 2003. Within the orders of the March 2014 Board remand were for the VA physician to opine as to whether the Veteran’s hypertension was causally related to his psychiatric disorders. The Board notes that the April 2020 VA physician did not respond to this directive. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the Veteran’s claim for service connection for hypertension is inextricably intertwined with the issue of service connection for a psychiatric disability, which is being remanded for further adjudication. Therefore, a final decision on the issue of service connection for hypertension cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered Service connection for an acquired psychiatric disorder (to include PTSD and depression) is remanded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the appellant in developing evidence to substantiate the claim. 38 C.F.R. § 3.159. An April 2020 VA examiner indicated that, because the Veteran has no comprehensive evaluation in the records, assigning a diagnosis would be resorting to mere speculation. The examiner indicated that a full examination would be required to render a DSM-compliant diagnosis and determine the cause of any possible diagnoses. Obviously, this is unreasonable because the Veteran is deceased. However, there is evidence in the claims file providing information about the late Veteran’s acquired psychiatric condition(s). A March 2011 VA medical treatment reveals that the Veteran had a diagnosis of severe depression. A September 2006 buddy statement from a fellow servicemember indicates that the Veteran was exposed to mortar attacks. The appellant testified that she observed her husband’s personality change from before he went into service as compared to when he came back. The appellant testified that, after service, the Veteran developed a drinking problem, would go into rages, and would put guns to her head. The appellant’s lay statements cannot establish a causal link between service and an acquired psychiatric condition because that is a complex medical question beyond any readily observable cause and effect relationship. See Jandreau supra. However, given that the appellant and the fellow servicemember provided competent and credible statements that the Veteran was exposed to traumatic events during service and he was a different man when he exited service, the Board finds that there is at least an indication of a causal relationship. Therefore, this issue must be remanded for a medical opinion about whether the late Veteran’s severe depression was causally related to his service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA must provide a medical examination when there is insufficient medical evidence to decide the claim but there is evidence of a current disability, an in-service injury, and an “indication” of a potential causal link (nexus) to service). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Obtain a retrospective opinion from an appropriate clinician to determine the nature and cause of the late Veteran’s major depressive disorder. Based on the factual evidence of record the clinician must provide an opinion as to whether it is as likely as not (50 percent or greater) that the Veteran’s major depressive disorder was incurred in, related to, or caused by any incident of the Veteran’s military service. 3. Thereafter, an opinion from an appropriate VA examiner must be obtained to determine whether hypertension is related to the Veteran’s military service. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on a review of the evidence of record and with consideration of the lay statements of record, the examiner must provide an opinion as to whether hypertension is related to the Veteran’s military service or to a psychiatric disorder. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.