Citation Nr: 21064326 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-23 831 DATE: October 19, 2021 REMANDED Entitlement to service connection for chronic low back pain and thoracic spine disability is remanded. Entitlement to service connection for cervicothoracic spine pain is remanded. Entitlement to service connection for right knee pain and dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depressive disorder, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1975 to December 1985. An April 1986 Administrative decision determined that the Veteran's service from June 26, 1975 to June 25, 1981 is considered honorable for VA purposes, but the period of service from June 26, 1981 to December 13, 1985 is dishonorable for VA purposes. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board denied the Veteran's claims of entitlement to service connection for right knee pain and dysfunction, chronic low back pain and thoracic spine disability, and cervicothoracic spine pain. In the February 2020 decision the Board also remanded the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder and claim for TDIU. The Veteran appealed the part of the Board's February 2020 decision that denied the right knee, low back, and cervical spine claims to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the part of the Board's February 2020 decision that denied the claims appealed to the Court and remanded the matters for action consistent with the terms of the joint motion. The claims remanded in the February 2021 JMPR and the remanded claims in the February 2020 Board decision are now back before the Board and ready for adjudication. 1. Chronic Low Back Pain and Thoracic Spine Following a June 2018 VA examination, the VA examiner opined that the Veteran's claimed back condition was less likely than not incurred in or caused by the Veteran's service. As part of the rationale in support of the opinion, the VA examiner noted that there were no service treatment records available to review. However, service treatment records, including a March 2, 1981 record, reflect reports of low back pain. Thus, an additional VA opinion is necessary since the prior examiner did not have the opportunity to review evidence of the in-service documentation of low back pain. 2. Cervicothoracic Spine Pain The Board cannot make a fully-informed decision on the issue of entitlement to service connection for cervicothoracic spine pain because no VA examiner has opined whether the Veteran has a cervical spine disability that is related to the documented in-service spine pain noted during his period of honorable service. Thus, a remand is required to obtain a VA opinion. 3. Right Knee An additional VA opinion is needed to adequately adjudicate whether the Veteran is entitled to service connection based on a continuity of symptomatology theory of entitlement. The Board notes the negative May 2018 VA opinion regarding direct service connection. However, a November 2017 private consultation report reflects that the Veteran "has a history of progressive pain and dysfunction of the right knee which was treated by military personnel with medications." In an August 2021 appellate brief, the Veteran's attorney contended that service connection is warranted under continuity of symptomatology based in part on the November 2017 private consultation report. Therefore, as the May 2018 VA opinion did not specifically address the theory of continuity of symptomatology, an additional VA opinion is needed to adequately evaluate the claim. 4. Acquired Psychiatric Disorder Initially, the Board notes that the AOJ made a formal finding in July 2020 that the information required to verify the Veteran's alleged stressors was insufficient to send to the United States Army and Joint Services Records Research Center (JSRRC) and/or was insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The formal finding details the AOJ's efforts to obtain the information necessary to corroborate the Veteran's stressors. However, a review of the record illustrates that additional development of the Veteran's alleged stressors is needed although the Veteran did not provide dates of his alleged stressors on his March 2020 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD. Specifically, regarding the alleged stressor of a fellow servicemember dying from a drug overdose while stationed in Germany, the Veteran noted in his June 2018 VA Form 21-0781 that the incident happened in 1977 or 1978. Furthermore, regarding the stressor involving witnessing a servicemember shoot at the drill instructor while stationed in Germany and the fellow servicemembers being run over by tanks while in Germany, the Veteran's service personnel records illustrate the Veteran was stationed in Germany from November 1975 to June 1978. Although the Veteran's service in Germany was longer than the 60-day period generally used for research purposes, VA is obligated to submit multiple requests covering the relevant time window (in this case, from November 1975 to June 1978) in 60-day increments. See Gagne v. McDonald, 27 Vet. App. 397 (2015). The Court noted in Gagne that VA's duty to assist is not bound by the JSRRC's 60-day requirement and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. Id. at 404. The Board notes that although JSRRC as a research entity no longer exists, VA's duty to assist to have stressor research completed is still not bound by any 60-day period. See 86 Fed. Reg. 15,413, 15,413 (Mar. 23, 2021). Therefore, on remand, requests should be made in order to seek credible supporting evidence of his alleged stressors during his service in Germany. Second, the Board notes that the Veteran submitted a private opinion from E.T., a licensed clinical psychologist, dated in June 2021, that reflects that the Veteran's PTSD and major depressive disorder were acquired during the Veteran's service. However, in support of the opinion, Dr. E.T. cited to service treatment records from the Veteran's period of service that has been deemed dishonorable for VA purposes. Therefore, the Board finds the opinion is not adequate for rating purposes. Furthermore, as is noted above, further development is necessary to obtain credible supporting evidence regarding the Veteran's reported stressors. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and a stressor event in service; and (3) credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). Lastly, the Board acknowledges that a VA examiner opined in September 2020 that the Veteran's depressive disorder is secondary to his back pain. However, as the claim of service connection for an acquired psychiatric disorder is premised in part on the finding of service connection for a lumbar spine disability, the issue of an acquired psychiatric disorder is inextricably intertwined with that issue. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. TDIU Because a decision on the remanded claims could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of the claim of entitlement to TDIU is required. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic record any outstanding VA treatment records. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Conduct appropriate research to obtain credible supporting evidence of the Veteran's alleged stressors noted in his June 2018 VA Form 21-0781 and March 2020 VA Form 21-0781 while stationed in Germany from November 1975 to June 1978. If necessary, separate requests must be made for each 60-day period during this time frame. A copy of any request(s) and the responses for each 60-day period covered should be included in the claims file. As required under 38 C.F.R. § 3.159(c)(2), as many requests as are necessary to obtain the requested records must be made, and such efforts may be ended only if the conclusion is reached that the records sought do not exist or that further efforts to obtain such records would be futile. If such a conclusion is reached or the search for such records has negative results, documentation to that effect should be included in the claim file. 3. After completing the development requested in item 1, obtain a medical opinion from a qualified clinician for the Veteran's chronic low back pain and thoracic spine, cervicothoracic spine pain, and right knee claims. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Chronic Low Back Pain and Thoracic Spine Is it at least as likely as not (50 percent or greater probability) that the Veteran's chronic low back pain and thoracic spine condition is related or attributable to his military service, to include his report of chronic lower back pain on March 2, 1981? (b.) Cervicothoracic Spine Pain Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervicothoracic spine pain condition is related or attributable to his military service, to include his report of spine pain on March 2, 1981? (c.) Right Knee i) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right knee condition is related or attributable to his military service, to include his in-service reports of right knee pain, documented in a January 1980 service treatment record? ii) Is it at least as likely as not that right knee degenerative arthritis (1) began during active service, (2) manifested within a year of the Veteran's discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In addressing these questions, the reviewing clinician is asked to specifically address the November 2017 private consultation report that reflects that the Veteran "has a history of progressive pain and dysfunction of the right knee which was treated by military personnel with medications." In rendering the opinions for (a.) through (c.), the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Obtain a medical opinion from a qualified clinician regarding the Veteran's psychiatric disorder, to include PTSD. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) For the diagnosis of PTSD, is it at least as likely as not (a 50 percent or greater probability) that PTSD is related to any incident of the Veteran's military service, to include all corroborated stressors? The examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s). (b.) For any psychiatric diagnosis other than PTSD, to include major depressive disorder, opine as to whether it is at least as likely as not (50 percent or greater probability) that such is related to the Veteran's military service. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After completing the development above, undertake any development necessary to adjudicate the claim for TDIU. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.