Citation Nr: 21069744 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-36 545 DATE: November 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1986 to October 1989. He appealed an October 2015 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran's appeals were remanded for additional development in May 2019. After the Veteran's appeal was recertified to the Board in July 2020, the AOJ added additional VA treatment records to the claims file. The Veteran requested that his appeal be remanded back to the AOJ for initial review of those records. See October 2021 correspondence. A remand is therefore required before the Board may decide the Veteran's claims. The Board's current review of the record also reveals that additional development is necessary. The Veteran asserted that during service he received treatment in an emergency room following an injury to his neck. See February 2016 VA Form 21-4138 and March 2019 Appellate Brief. The Veteran's service treatment records (STRs) contain no documentation of this treatment. Further, while the available STRs reference orthopedic care and physical therapy the Veteran received during service, records pertaining to this care are not included in the STRs. See December 1988 Report of Medical Examination. Accordingly, the AOJ should determine whether the Veteran's complete STRs have been received and obtain any outstanding records, to include documentation of inpatient care. 1. Acquired psychiatric disorder The Veteran filed a claim for PTSD, which he asserts is due to stressors that occurred while he served in Panama. See July 2014 statement. The AOJ made several attempts to verify the Veteran's stressors, including contacting the Joint Service Records Research Center and Drug Enforcement Agency, but received no corroborating documents in response to those queries. Although the AOJ sent the Veteran a letter explaining the verification efforts, the letter did not make a formal finding that his claimed stressors could not be verified. See August 2015 status letter. If the stressors cannot be verified, the AOJ should prepare a formal finding stating why verification could not be completed, and listing the steps taken to verify the stressors. The May 2019 Board remand directed the AOJ to afford the Veteran an examination to determine the nature and etiology of any acquired psychiatric disorders present. A December 26, 2019 exam request note states that the Veteran failed to appear for his examination. Although a copy of the notice letter informing the Veteran of the date, time and location of his examination is not contained in the record, the absence of copies of the examination scheduling letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). The record contains no indication as to whether the Veteran had good cause to miss his examination, and the Board notes the Veteran attended his cervical spine and lumbar spine examinations in December 2019. However, as the Board is remanding the Veteran's appeal to obtain possible outstanding STRs and to issue a formal finding as to whether his claimed stressors could be verified, affording the Veteran another opportunity to attend an examination is appropriate. However, the Veteran must be aware that going forward, the duty to assist is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). 2. Cervical spine disability The Veteran was afforded a cervical spine examination in December 2019, and an opinion was obtained. However, as noted above, the Board is remanding the Veteran's claim to identify and obtain any possible outstanding STRs. If new STRs or inpatient records are received because of this remand, a new opinion regarding the Veteran's claimed cervical spine disability should be obtained. 3. Lumbar spine disability The Veteran was afforded a lumbar spine examination in December 2019. The examiner stated that she was unable to establish any low back disorder or verify the Veteran's reported symptoms. At the time of the examination x-ray testing could not be performed due to a clinic issue, and the Veteran declined to return for testing on another day. See January 2020 examination report, pg. 16. Nevertheless, a February 2020 MRI report noted the Veteran had moderate desiccation of multiple discs in the lumbar spine, and subsequent records show a diagnosis of lumbar spondylosis. See April 2020 and February 2021 VA medical records. Additionally, the examiner's opinion noted that the Veteran reported increased back pain following right knee surgery in April 2008 but ignored that finding in her supporting rationale. The Court of Appeals for Veterans Claims has held that the permanent worsening standard does not apply to this type of case. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Any degree of worsening of a condition by a service-connected condition is sufficient to establish aggravation for purposes of granting service connection on a secondary basis. See 38 C.F.R. § 3.310 (b). Given these deficiencies, and the possibility of receiving additional STRs, remand for a new opinion is warranted. The matters are REMANDED for the following actions: 1. Obtain any outstanding STRs not already of record, to include any available reports of inpatient clinical or hospital treatment that the Veteran received during service. All efforts to locate the records must be documented in the claims file and the Veteran notified accordingly. 2. If the Veteran's reported stressors cannot be verified, prepare a formal finding stating why verification could not be completed, and listing the steps taken in the attempt to verify the stressors. 3. After the above steps have been completed, schedule the Veteran for an appropriate examination to determine the nature and etiology of any acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the examiner. The examination must include a notation that this record review took place. The examiner should identify all acquired psychiatric disorders present and should specifically state whether the criteria for a diagnosis of PTSD are met. If the criteria for a diagnosis of PTSD are not met, the examiner should reconcile that determination with the diagnoses of PTSD of record. See February 2014 VA treatment record noting a diagnosis PTSD. For each identified psychiatric disorder, the examiner is asked to respond to the following inquiries: (a.) Is it at least as likely as not that any diagnosed psychiatric disorder was incurred in, or is otherwise related to, the Veteran's time on active service, to include his claimed stressors? (b.) If a diagnosis of PTSD is warranted, specify whether that diagnosis is related to the Veteran's fear of hostile military or terrorist activity while stationed in Panama. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (c.) If a diagnosis of PTSD is warranted and is not due to a fear of hostile military or terrorist activity, specify the specific claimed in-service stressor or stressors upon which that diagnosis is based. The 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. 4. After any outstanding records have been received, refer the claims file to an appropriately qualified clinician who has not previously reviewed the claims file for preparation of a medical opinion. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. With respect to the Veteran's lumbar spine, the reviewing clinician should respond to the following: (a.) Is it at least as likely as not that any lumbar spine disability, to include spondylosis, had its onset during service or is otherwise related to service? (b.) Is it at least as likely as not that any lumbar spine disability, to include spondylosis, was caused by his service-connected right knee arthritis? (c.) Is it at least as likely as not that any lumbar spine disability, to include spondylosis, was aggravated by his service-connected right knee arthritis? For the purposes of this opinion, the reviewing clinician is to apply the proper aggravation standard, which is that any degree of worsening of a condition by a service-connected condition is sufficient to establish aggravation in this case. If new STRs are obtained because of this remand, the reviewing clinician should also opine whether it is at least as likely as not that the Veteran's diagnosed cervical arthritis had its onset during service or is otherwise related to service. In rendering any opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. The reviewing clinician 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. 5. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.