Citation Nr: 21067424 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-12 745 DATE: November 4, 2021 REMANDED Entitlement to service connection for a lower back condition, to include degenerative disc disease, is remanded. Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder, anxiety disorder, and claustrophobia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1972 to March 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in October 2020 and February 2021. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. See August 2018 Board Hearing Transcript. 1. Entitlement to service connection for a lower back condition, to include degenerative disc disease, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the October 2020 remand directives. See Stegall v. West, 1 Vet. App. 368 (1998). Specifically, in February 2021, the Board instructed the AOJ to obtain outstanding pertinent medical records, to include Social Security Administration (SSA) medical records. However, no SSA medical records have been associated with the claims file, nor is there any indication that such records have been requested. As the Board cannot find substantial compliance with the February 2021 remand directives, a remand is necessary to allow the AOJ to obtain any outstanding pertinent medical records, to include SSA medical records. Even if the Board could find substantial compliance with the February 2021 remand directives, a remand would nonetheless be necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed back condition. In November 2020, the Veteran was afforded a VA examination in which the examiner opined that the Veteran's degenerative disc disease was less likely than not related to service as such condition is an age-related condition. See November 2020 VA Back Conditions Disability Benefits Questionnaire (DBQ). In the February 2021 remand, the Board found this opinion to be inadequate as the examiner had not cited any medical literature for his conclusion that degenerative disc disease is an age-related condition, incorrectly identified the date of diagnosis for such condition as January 2018, and did not address the Veteran's diagnoses of osteoarthritis or osteoporosis. In March 2021, an addendum opinion was obtained from the November 2020 examiner, in which the examiner opined that the Veteran's back condition was less likely than not related to his active duty service. See March 2021 VA Back Conditions Medical Opinion DBQ. However, in support of the opinion, the examiner again noted that the Veteran was not diagnosed with degenerative disc disease until July 2018. See id. However, a review of the Veteran's private medical records reveal that the Veteran was diagnosed with lumbar degenerative disc disease as early as July 1995. See Dr. H.J.C.M. records. As such, the March 2021 opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Further, an opinion is inadequate when, as indicated here, the examiner does not consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Moreover, as discussed above, the Veteran's medical records indicate that, in addition to lumbar degenerative disc disease, the Veteran also has diagnoses of osteoarthrosis and osteoporosis. See Dr. H.J.C. records; San Juan VA Medical Center (VAMC) records, received February 2019 in CAPRI. However, the March 2021 opinion only addressed degenerative disc disease. As such, the March 2021 opinion is inadequate to the extent it does not address the Veteran's diagnoses of osteoarthrosis and osteoporosis. For these reasons, the Board finds the March 2021 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's lower back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder, anxiety disorder, and claustrophobia, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the AOJ has not substantially complied with the October 2020 remand directives; specifically, SSA medical records have not been associated with the claims file. See Stegall v. West, supra. Even if the Board could find substantial compliance with the February 2021 remand directives, a remand would nonetheless be necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed acquired psychiatric condition. In July 2021, the Veteran was afforded a VA examination in which the examiner noted diagnoses of major depressive disorder, unspecified anxiety disorder, and claustrophobia. Ultimately, the examiner opined that the Veteran's diagnosed psychiatric conditions were less likely than not related to his active duty service. In support of this opinion, the examiner noted that there was no evidence of psychiatric complaints, findings, or treatment during military service or within one-year after discharge. See July 2021 VA Mental Disorders DBQ; July 2021 VA Medical Opinion DBQ. Notably, while certain chronic diseases are presumptively related to service if they manifest within one year following separation from service, the Veteran's diagnosed psychiatric conditions are not amongst such diseases. See 38 C.F.R. §§ 3.307, 3.309. Given such, there is no requirement that a condition manifest within one year following separation for such condition to be related to service. As such, the examiner appears to have used the wrong standard in determining whether the Veteran's diagnosed psychiatric conditions are related to service. On the other hand, even if the examiner was not considering the aforementioned one-year presumptive period, he did not adequately explain the significance of the Veteran's disability not being diagnosed within a year of separation or manifesting within a year of separation, rendering the examination ambiguous as well as conclusory and inadequate for review. In July 2021, an addendum opinion was also obtained from the July 2021 examiner, in which the examiner stated that there was no evidence to link the Veteran's report of in-service claustrophobia after being locked in a gas chamber with his current symptoms. The examiner elaborated by again stating that there was no evidence of psychiatric complaints, findings, or treatment during military service or within one-year after discharge. See July 2021 VA Addendum DBQ. However, as stated above, there is no requirement that a condition manifest within one year following separation for such condition to be related to service nor did the examiner explain the significance of his determination. A medical opinion must "sufficiently inform[s] the Board of a medical expert's judgment on a question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Next, potentially pertinent medical records have not been associated with the claims file. As such, the July 2021 opinion, and addendum thereto, are inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the July 2021 etiological opinion, and addendum thereto, to be inadequate and, therefore, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's acquired psychiatric conditions. See Barr v. Nicholson, supra. Additionally, the Board notes, in an October 2019 VA examination report, the examiner opined that the Veteran's acquired psychiatric conditions were at least as likely as not aggravated beyond their natural progression by his lower back condition. See October 2019 VA Mental Disorders DBQ. This is the incorrect standard for aggravation. Moreover, the Board finds this issue to be inextricably intertwined with the Veteran's claim of entitlement to service connection for a lower back condition, which is remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Lastly, the Board notes that, in February 2021, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical providers, to include Dr. H.J.C.M. and Dr. A.L.P., that provided him with treatment pertinent to his claimed conditions. The AOJ also provided the Veteran with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain his medical records on his behalf. See February 2021 VA Correspondence. To date, the Veteran has not responded to the request. VA's duty to assist is not a "one-way street", and a veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Veteran is cautioned that failure to cooperate with any requested development may result in the denial of his claim. 38 C.F.R. § 3.655. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, to include SSA records and private treatment records from Dr. H.J.C.M. and Dr. A.L.P. from July 2014 to current, as well as records relating to treatment at San Juan VAMC from January 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician, OTHER THAN THE CLINICIAN THAT CONDUCTED THE NOVEMBER 2020 EXAMINATION, regarding the nature and etiology of the Veteran's claimed lower back condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. 3. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including employment and the onset and progression of the symptomatology. (b.) For each diagnosed back condition, to include degenerative disc disease, osteoarthrosis, and osteoporosis, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is specifically instructed to consider and address: i. Whether the Veteran's lower back condition is the type of disability that would stem from lifting heavy beams to construct a bridge. Are the Veteran's assertions consistent with medical knowledge or implausible? Are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? ii. Whether the Veteran's lower back condition is the type of disability that would stem from driving a truck during service, which included driving long hours, mounting and dismounting heavy tires, and loading and unloading heavy equipment. Are the Veteran's assertions consistent with medical knowledge or implausible? Are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. IF MEDICAL LITERATURE IS RELIED UPON IN RENDERING A DETERMINATION, THE EXAMINER SHOULD IDENTIFY AND SPECIFICALLY CITE EACH REFERENCE MATERIAL UTILIZED. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded 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. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. After completing the development in Section One above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's acquired psychiatric conditions. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed acquired psychiatric condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is asked to specifically consider and address the Veteran's report that he has experienced claustrophobia since he was locked in a gas chamber while stationed at Fort Jackson. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded 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. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.