Citation Nr: 21004363 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-28 547 DATE: January 26, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from June 2004 to July 2004 and from October 2004 to December 2005 with service in Southwest Asia from December 2004 to November 2005. The Veteran also had additional service with a Reserve Component. In October 2018, a Veterans’ Law Judge other than the undersigned issued a Board of Veterans’ Appeal (Board) that denied service connection for a back disability and Remanded the claim of service connection for an acquired psychiatric disorder including PTSD. As to claim of service connection for an acquired psychiatric disorder, as noted in the October 2018 decision, the Board has recharacterized this issue to include all acquired psychiatric disorders including PTSD so as to reflect the claims being made by the Veteran and the diagnoses seen in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). As to the claim of service connection for a back disability, the Veteran appealed the October 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 order, which incorporated the parties of Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the October 2018 decision to the extent that it denied service connection for a back disability. In August 2019, the Board remanded the Veteran’s claim of service connection for a back disability. Entitlement to service connection for a back disability and an acquired psychiatric disorder to include PTSD are remanded. As to the claim of service connection for a back disability and an acquired psychiatric disorder to include PTSD, the Board notes that both issues were Remanded to obtain needed etiology opinions. However, and as noted at least in part by the Veteran’s representative in the November 2020 pleading, neither of the etiology opinions provided by the post-Remand VA examiners in October 2019 are adequate to adjudicate the claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the claim of service connection for a back disability, the Board finds the October 2019 VA examiner’s opinion that the Veteran’s pre-existing back disability was not aggravated by a period of active duty service adequate because, while the examiner supported this opinion by citing to the fact that there were “no clinical findings of disc disease, no diagnosis of disc disease in the pre-service, service or in the years immediately post service until the acute event that caused his acute disc disease as noted in the MRI of 1/2012,” the post-service VA treatment records starting in January 2006 in fact documented his complaints and treatment for back pain which could have been a symptom of his acute disc disease. See, e.g., VA treatment records dated in January 2006, March 2006, and October 2007; Also see Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). As to the claim of service connection for an acquired psychiatric disorder including PTSD, the Board does not find the October 2019 VA examiner’s opinion adequate because it did not specifically consider the January 2006 Memorandum from the Indiana National Guard which confirmed the Veteran, while on active duty, received fire and received improvised explosive device (IED) blasts including on February 25, 2005, and was recommended for a Combat Action Badge. See 38 C.F.R. § 3.304(f); Also see Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). The Board also does not find the October 2019 VA psychiatric examiner’s opinion adequate because it relied upon the May 2017 VA examiner’s opinion which the Board already explained was inadequate in the October 2018 Remand. Id. Lastly, the Board does not find the October 2019 VA psychiatric examiner’s opinion adequate because the examiner did not provide etiology opinions as to the Veteran’s other acquired psychiatric disorders to include the anxiety and depressive disorders diagnosed in the VA treatment records and noted by the May 2016 VA examiner and as directed by the October 2018 Remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Therefore, the Board finds that a Remand is required to obtain adequate opinions as to the origins and/or diagnoses of the Veteran’s back disability and acquired psychiatric disorders including PTSD. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.); Barr, supra. In this regard, the Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which Veterans have served in the Persian Gulf since August 2, 1990. Therefore, the Board finds that while the appeal is in Remand status the VA examiner and the RO are required to consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. While the appeal is in remand status any outstanding VA and private treatment records should also be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. In order to comply with the JMPR, provide the Veteran with a VA examination to obtain a medical opinion as to the origins of his back disability. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: Provide an opinion as to whether it is at least as likely as not that the back disability that pre-existed the Veteran’s entry onto active duty service was aggravated by that service. In providing answers to the above questions the examiner should consider and discuss, among other things, the following: The November 2002 private treatment report that noted that the Veteran was entering service, presented for an evaluation of scoliosis, and diagnosed with very mild scoliosis. The Veteran’s November 2002 enlistment examination for the Reserves which noted he had scoliosis. The February 2005 post-deployment examination in which the Veteran reported having back pain. The January 2006, March 2006, and October 2007 post-active duty VA treatment records in which the Veteran presented with complaints of lower back pain and/or was diagnosed with chronic back pain. The examiner in providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service to include the claims regarding pain: In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner is also advised that the term “aggravation” means a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Provide the Veteran with a VA examination to obtain medical opinions as to the diagnoses and origins of his acquired psychiatric disorders including PTSD (if any). The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether the Veteran was diagnosed with any acquired psychiatric disorder during the pendency of the appeal to include PTSD, an anxiety disorder, and a depressive disorder. In order to comply with the last Remand, the examiner in providing the diagnoses and/or the lack of a diagnosis must specifically consider and discuss the following: i. the January 2006 Memorandum from the Indiana National Guard which confirmed the Veteran, while on active duty, received fire and received IED blasts including on February 25, 2005, and was recommended a Combat Action Badge; and ii. the anxiety disorder and depressive disorder diagnosed in the VA treatment records and noted by the May 2016 VA examiner. In this regard, if the record shows that the Veteran previously had any acquired psychiatric disorder and it resolved and/or it was re-diagnosed as another psychiatric disorder, the examiner must say so. b. As to each diagnosed acquired psychiatric disorder found to be present during the pendency of the appeal including PTSD, an anxiety disorder, and a depressive disorder even if it has since resolved, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during any period of qualifying active duty service including the events described in the January 2006 Memorandum from the Indiana National Guard. c. Provide an opinion as to whether the Veteran was diagnosed with a psychosis in the first year following any period of qualifying active duty service. d. If a nexus to his service cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. e. If, after reviewing the claims file, you determine that the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. The examiner in providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service: In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. If the claim of service connection for an acquired psychiatric disorder including PTSD is not thereafter granted, the RO must issue a supplemental statement of the case that includes, among other things, notice of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.