Citation Nr: 21004014 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-22 210 DATE: January 25, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for drug abuse is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1980 to October 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. The Board remanded these matters in April 2019 for additional development. Unfortunately, the Board is not satisfied that there was substantial compliance with its prior remand instructions; therefore, the appeal must be remanded once again. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that his current lumbar spine disability was incurred in or caused by military service. At the Board hearing, the Veteran testified that he injured his back several times during service due to his duties as an aircraft maintenance specialist. The Veteran testified that he sought treatment for back problems “three or four times” while stationed in Okinawa, and a “couple times” while stationed at Tinker Air Force Base in Oklahoma. The Veteran’s personnel records indicate that he was stationed in Okinawa for approximately one year and five months. However, the service treatment records available in the claims file do not reveal any treatment records from the Veteran’s time in Okinawa. In fact, the only available service treatment records are the Veteran’s separation examination and some dental records. Moreover, the claims file also contains a two page document that appears to contain service treatment records; however, it is unclear whether these records were submitted by the Veteran or obtained by VA. This document contains an undated treatment record noting that the Veteran was in a car accident and injured his neck, back, and left elbow. Although it appears that x-rays were ordered, these are not of record. In light of the foregoing, the Board finds it likely that there are potentially-relevant service treatment records that have not yet been associated with the claims file. VA has a statutory duty to assist claimants in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty to assist requires VA to make as many requests as are necessary to obtain relevant records from a Federal department or agency, such as a service department. VA may only end these efforts if it has concluded that the records sought do not exist or that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Accordingly, the Board finds that remand is required to obtain any outstanding service treatment records to ensure that there is a complete record upon which to decide the Veteran’s claim. On remand, the RO must undertake appropriate action pursuant to 38 C.F.R. § 3.159 to identify and obtain these records. Moreover, if additional service treatment records are obtained that show the Veteran was treated for low back complaints during service, the RO must obtain an addendum medical opinion that takes into account any such in-service treatment. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss, which he generally contends was incurred in service due to military noise exposure. The Veteran last underwent a VA audiological examination in June 2011; however, he was not shown to have a hearing loss disability for VA purposes under the provisions of 38 C.F.R. § 3.385 at that time. A VA audiology note shows that the Veteran was seen in the walk-in audiology clinic in December 2015 with complaints of hearing loss since military service. Upon audiometric testing, mild hearing loss was detected in both ears, however, the Veteran did not meet the puretone thresholds indicative of a hearing loss disability under VA regulation. However, the Board notes that speech recognition was not tested using the Maryland CNC Test. Therefore, this examination is inadequate to allow the Board to determine whether the Veteran has a current bilateral hearing loss disability for VA compensation purposes. Given the foregoing, the Board finds that remand is warranted to afford the Veteran a VA audiological examination to determine if he has a current bilateral hearing loss disability and, if so, whether such disability is etiologically related to service. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. 4. Entitlement to service connection for drug abuse is remanded. Pursuant to the April 2019 Board remand, the Veteran underwent a VA PTSD examination in November 2019. Upon examination of the Veteran, the VA examiner marked on the examination report that the Veteran has (or previously had) a diagnosis of PTSD. The examiner then opined that PTSD is less likely as not due to drug abuse in the military or the claimed stressor of racial tension. However, in the medical opinion, the examiner noted that there is no evidence of any diagnosis of PTSD. The examiner did not explain this inconsistency and it is unclear whether the Veteran has a current diagnosis of PTSD. Further, the Board notes that the VA examiner also diagnosed the Veteran with unspecified anxiety and depression. The examiner attributed the Veteran’s anxiety and depression to post-service stressors such as chronic pain and financial stress, and noted that “while racial bias/prejudice is a valid issue and aggravates him, it is not the source of his diagnoses [of anxiety and depression].” However, the examiner did not provide an etiology opinion for these diagnoses using the correct legal standard of “at least as likely as not.” Finally, the Board notes that at the end of the examination report, the examiner included the following remarks: “The Veteran’s self-report [of symptoms] was given the benefit of the doubt in consideration for the above diagnosis and there is a clear nexus between his symptomatology as stated and his military service.” No further explanation for this finding was provided, nor did the examiner explain which diagnosis she was referring to. Due to the November 2019 VA opinion’s significant inconsistencies, the RO obtained an addendum opinion from a different VA examiner, who did not examine the Veteran, in August 2020. In this opinion, the VA examiner attempted to clarify the examination findings made by the November 2019 VA examiner. The examiner opined that the Veteran does not have a current diagnosis of PTSD and stated that racial bias/prejudice is not the source of the Veteran’s unspecified anxiety disorder or unspecified depressive disorder. The Board does not find either the November 2019 or August 2020 opinions adequate to allow the Board to fairly decide the Veteran’s claim. Significantly, neither opinion uses the correct legal standard of “at least as likely as not,” with regard to the etiology of the Veteran’s currently-diagnosed unspecified anxiety and depressive disorders. Moreover, neither opinion provided adequate medical rationale to support their finding that the Veteran’s current psychiatric disorder is not related to military service, to include incidents of racial prejudice described by the Veteran. In light of the above, the Board finds that the Veteran’s claim must be remanded once again because the RO did not comply with the Board’s prior remand directive to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, the RO must obtain a medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). With regard to the claim for service connection for drug abuse, the Veteran testified that he began abusing drugs during service as a result of incidents of racial discrimination he endured while stationed Tinker Air Force Base. While service connection for drug abuse is precluded by law on a direct basis, a substance abuse disability may be service-connected if it was acquired as secondary to, or as a symptom of, a service-connected disability. Because this claim is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder, it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following actions: 1. Undertake appropriate efforts to request and associate with the claims file any outstanding service treatment records, to include the Veteran’s enlistment examination, treatment records from Kadena Air Base in Okinawa, and records pertaining to treatment following an in-service motor vehicle accident that resulted in injuries to the Veteran’s neck, back, and left elbow. If the RO cannot locate the aforementioned records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain these government records would be futile. The RO should then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Then, only if any newly-obtained service treatment records show in-service treatment for low back pain and/or injury, the RO must obtain an addendum medical opinion from a qualified VA examiner assessing the nature and etiology of the Veteran’s current lumbar spine disability. The opinion must specifically address whether the Veteran’s degenerative arthritis of the lumbar spine is a manifestation of any in-service injury to the low back, with consideration of the Veteran’s lay statements of record and his MOS duties. 3. Schedule the Veteran for a VA audiological examination with a VA audiologist to determine the nature and etiology of his claimed bilateral hearing loss disability. The examiner must review the claims file in its entirety, including this REMAND, and must note that review in the examination report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner should provide an opinion as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during active duty service, within one year of separation, or is otherwise related to any in-service disease, event, or injury? The examiner is reminded that the lack of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner’s own expertise, medical principles, and evidence in the Veteran’s claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. 4. Obtain a VA medical opinion from an appropriate VA mental health professional that addresses all psychiatric disorders diagnosed during the pendency of the appeal (since February 2011), to include PTSD and unspecified anxiety and depressive disorders. A full VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. The examiner should set forth all currently-diagnosed acquired psychiatric disorders, including those diagnosed during the pendency of the appeal, even if currently resolved. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) If the examiner finds that a current diagnosis of PTSD is warranted, is it at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD is related to his claimed in-service stressor(s), or otherwise related to any other in-service event? If the examiner finds that a current diagnosis of PTSD is not warranted, this finding must be reconciled with VA treatment records that show a history of PTSD diagnoses. (b) Is it at least as likely as not (50 percent or greater probability) that any other currently-diagnosed psychiatric disorder was incurred in or caused by an in-service injury, illness, or event? The examiner is advised that the Veteran is competent to report his psychiatric symptoms and history and such lay reports of record, to include the Veteran’s hearing testimony, must be acknowledged and considered in formulating any opinion. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must set forth a complete rationale for any conclusion reached, citing to medical literature and/or evidence in the Veteran’s claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.