Citation Nr: 21004550 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 12-14 868 DATE: January 27, 2021 REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder and anxiety disorder, not otherwise specified (NOS) is remanded. The issue entitlement to service connection for arthritis is remanded. The issue entitlement to service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to May 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from February 2011 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. These matters were previously before the Board at which times they were remanded for further development. 1. Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder and anxiety disorder, not otherwise specified (NOS) is remanded. 2. Entitlement to service connection for arthritis is remanded. 3. Entitlement to service connection for a back condition is remanded. Although the Board regrets the additional delay, further development is necessary prior to the adjudication of the issues on appeal. The Veteran is seeking service connection for an acquired psychiatric disorder, to include major depressive disorder, and anxiety disorder NOS; service connection for arthritis; and service connection for a back condition. In addressing the claim for service connection for an acquired psychiatric disorder, to include major depressive disorder and anxiety disorder NOS, the evidence of record includes an April 2016 VA examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran was not separated from military service, but completed two years of honorable service, although he admits he had difficulty adjusting to military life. Once discharged, the Veteran began studying and completed a bachelor’s degree in accounting from Catholic University in Ponce, Puerto Rico, and at the same time worked in a private bank, retiring from the same bank after 30 years of service, retiring in 1999. The examiner further reasoned that the Veteran's symptoms meet DSM-5 criteria for a diagnosis of unspecified depressive disorder, but his condition is not related to his military service because his symptoms presented many years following military service. The Veteran began psychiatric treatment with a private psychiatrist in 1995, 28 years post-military service, following a surgical intervention for peritonitis due to perforated diverticulitis, with colostomy, and was diagnosed with depression and prescribed antidepressants. The evidence of record also includes a January 2020 VA examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior to the military service, during the military service, nor psychiatric treatment within one year after discharge from the military service. The Veteran sought formal psychiatric treatment around 2002, almost 33 years after the active military discharge. There is no relation between military service and the mental condition found in 2002. A temporal relationship between the neuropsychiatric disorder and the Veteran’s military service is not established. Major depressive disorder bears no relation with the military service. However, the Board notes that the Veteran's post-service VA records confirm a current diagnosis of anxiety disorder NOS and the Veteran's service treatment records (STRs) document a stomach disorder which may be due to a nervous condition. The April 2016 and January 2020 VA examiners did not address this evidence in rendering their opinions. The April 2018 Board remand directives specifically requested that the examiner acknowledge and discuss the psychiatric diagnoses of record including anxiety disorder, NOS and determine whether they had their clinical onset in service, within one year of service, or were otherwise related to service, including to the in-service notations of stomach trouble. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds the April 2016 and January 2020 VA examiner opinions inadequate in this regard, and an additional VA addendum opinion addressing this evidence is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Turning to the claims for service connection for arthritis and service connection for a back condition, the Board notes that post-service evidence includes VA medical records which document current diagnoses of degenerative disease of the lumbar spine; disk herniation, degenerative vertebral endplate changes at L2-3; and knee osteoarthrosis. The Veteran contends that he has arthritis/a back condition related to his military occupational specialty (MOS) of Supply Specialist, which required heavy lifting of boxes and laundry. The evidence of record includes a January 2020 VA examination report in which the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that available STRs are silent for complaints, evaluation, and/or treatment related to the now claimed bilateral knee condition during his active duty service or within five years after his discharge from active duty. Present findings diagnosed several years after his discharge from active duty service are not related to his active duty service. The evidence of record also includes a January 2020 VA examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the lumbar spine condition is related to the changes of the normal aging process. However, the January 2020 examiner failed to provide any scientific or medical literature in support of this "natural aging progression" rationale and more importantly, did not address the Veteran’s contentions. The Board notes that the April 2018 Board remand directives specifically requested that the examiner discuss the Veteran’s contention that he has both arthritis/a back condition as a result of his MOS as Supply Specialist, which required heavy lifting of boxes and laundry, and his contention that he has had both arthritis and a back condition since service. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall, 11 Vet. App. at 271. Therefore, the Board finds the January 2020 VA examiner opinions inadequate in this regard, and an additional VA addendum opinion addressing this evidence is necessary. See Barr, 21 Vet. App. at 312 (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the file to the January 2020 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If an examination is deemed necessary to answer the question presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has an acquired psychiatric disorder that had its onset during active service, or within one year of the Veteran’s separation from active service, or is otherwise related to service? The examiner is asked to specifically discuss anxiety disorder, NOS and a stomach disorder which may be due to a nervous condition documented in the Veteran’s STRs. (b.) If the examiner determines that prior anxiety disorder, NOS/generalized anxiety disorder diagnoses are not/were not valid, the examiner must reconcile his or her opinion with these previous diagnoses. (c.) Please note that although the Veteran may not meet the criteria for a psychiatric diagnosis at the present time, diagnoses made prior to and since the October 2010 date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. (d.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Return the file to the January 2020 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If an examination is deemed necessary to answer the question presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed arthritis had its onset during active service, or within one year of the Veteran's separation from active service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that he has arthritis as a result of MOS as Supply Specialist, which required heavy lifting and his contention that he has had arthritis since service. The examiner is also asked to specifically discuss the Veteran's current diagnoses of right knee arthralgia and osteoarthrosis involving the knee. (b.) If the examiner opines that the Veteran's arthritis is due to the natural aging process, please explain why that is so. (c.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 4. Return the file to the January 2020 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If an examination is deemed necessary to answer the question presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed back condition had its onset during active service, or within one year of the Veteran's separation from active service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that he has a back condition as a result of MOS as Supply Specialist, which required heavy lifting and his contention that he has had a back condition since service. The examiner is also asked to specifically discuss the Veteran's current diagnoses of degenerative disease of the lumbar spine and disk herniation and degenerative vertebral endplate changes at L2-3. (b.) If the examiner opines that the Veteran's back condition is due to the natural aging process, please explain why that is so. (c.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.