Citation Nr: 21070080 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-35 897 DATE: November 22, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for seizures is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to special monthly pension (SMP) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2001 to June 2005 and from March 2006 to May 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from two January 2018 rating decisions and a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded the Veteran's claims. 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for an acquired psychiatric disability. 3. Entitlement to service connection for seizure disorder. 4. Entitlement to SMP. 5. Entitlement to a TDIU, Issues 1 5: The Board finds that a remand is necessary to obtain outstanding treatment records. 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). A review of the Veteran's VA treatment records discloses that medical records relevant to the appeal were associated with VA medical records system using Vista-Imaging. However, copies of these records are not included in the claims file or otherwise associated with the available VA treatment records. Any outstanding VA treatment records must be obtained on remand. Additionally, the Veteran has identified receiving treatment at private facilities, but has not been afforded the opportunity to assist in the development of his claims with regard specifically to these outstanding records. In this regard the Veteran's record shows that he has been receiving private treatment for St. Joseph's / Elizabeth's in Youngstown, Oho. See C&P Exam (November 2017). In his June 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, he identified treatment with Dr. R. Nath and Dr. Darius Saghafi. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (June 2019). It is unclear whether the Veteran has been properly notified of his opportunity to submit additional private treatment records. Therefore, remand is necessary to associate copies of these scanned record with the claims file. Issues 1: The Veteran contends that his low back disability resulted from active duty. He has not detailed his allegations. For the reasons explained below, the Board finds that remand is necessary to obtain an addendum medical opinion that substantially complies with the Board's prior remand directives and is adequate to decide the claim. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Although VA obtained medical opinions to address the etiology of the Veteran's current low back disability, the Board finds that these are inadequate for adjudicative purposes. By way of background, service treatment records (STRs) show normal findings of the spine at enlistment physical in September 2000. See STR Medical (July 2015). A January 2005 Report of Medical History shows the Veteran's reports of recurrent back pain, specifically, back pain in high school due to scoliosis. Id. At the April 2005 separation physical from the first period of active duty, the Veteran's spine was listed as being normal. Id. VA treatment records from the period between the Veteran's two periods of active duty show reports of low back pain in September 2005. See Medical Treatment Record - Government Facility (August 2009). Prior to his second period of active duty, the Veteran underwent another physical in November 2005, which showed normal spinal findings. Id. In October 2019, the Board remanded the low back claim "because no VA examiner has opined whether the Veteran's complaints of low back pain beginning in September 2005 are evidence of an onset of arthritis (lumbar spondylosis) during the one-year presumptive period following his June 2005 separation from service." See BVA Decision (October 2019). Next, the Veteran underwent a VA examination in January 2020 with January 2020 and August 2020 VA medical opinions (VAMO) associated therewith. At the January 2020 VA examination, the Veteran was diagnosed with lumbosacral strain, which the opinion concluded was less likely than not incurred in or caused by the claimed in-service injury, event or illness "In view of no complaints in service and negative exam on Separation and no additional complaints, evaluations, or treatments." See C&P Exam (January 2020). The rationale provided was that his separation physical showed normal back exam, and "no additional records noted with complaint of back pain," when the Veteran "left service in 2006." Id. In a subsequent August 2020 VAMO, after the examiner was asked to opine specifically as to whether the Veteran's low back disability manifested within one year after discharge from service, she addressed the September 2005 back pain and provided that, "No complaints from the 2005 urinary tract infection, which was not related to his back pain diagnosis, until 2017." See C&P Exam (August 2020). The opinion also reasoned that there were no records of any complaints, evaluations, or treatments for back pain within one year after he left service in 2006. Id. In this case, the VA medical opinions are inadequate to decide the claim for a number of reasons. First, neither of the VAMOs acknowledges the Veteran's report of low back pain or addresses the Veteran's alleged onset and continuation of his low back pain during service and ongoing back pain following discharge. Rather, the conclusions are based on absence of documented reports during service, at separation and diagnosis in 2017, in addition to a separation examination that was negative for a back condition. The Board notes the Veteran is competent to attest to observable symptomatology, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and, if rejected or found unpersuasive in view of other facts, this must be explained. The VAMOs do not reflect any consideration of the lay statements to specifically including his reports of back pain since service See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). Along the same lines, the opinion does not identify or explain the relevance or significance of any history, clinical findings, etc., relied upon in reaching the conclusion. Second, the VAMOs are inadequate because they are in part predicated on the absence of documented findings or medical treatment for a back disability between service separation in 2006 and the Veteran's diagnosis in 2018. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). The opinion essentially relied on the absence of documented evidence, in other words records showing a chronic back condition while in the service or within one year of exiting service; and it does not answer the question of whether the Veteran's current back problems are related to service. Notably, an absence of "chronicity of care" is not a valid basis for a negative medical conclusion given that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d). Inclusive with this issue, the VAMO does not adequately answer the Board remand question as to whether the disability began during service, manifested within one year of discharge from service or was noted during service with continuity of the same symptomatology. See Stegall, supra. Third, the accuracy of the VAMOs' review of the Veteran's record appears questionable as they appear to be premised on the finding that the September 2005 back pain was due to urinary tract infection (UTI), when, in fact, VA treatment records from September 2005 provide that the Veteran "[l]ikely" had UTI. See Medical Treatment Record - Government Facility (August 2009). While the August 2020 VAMO correctly recites that September 2005 findings, it nonetheless incorrectly assumes that the Veteran was conclusively diagnosed with UTI, which it then finds to be the reason for his back pain at that time. In sum, a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As detailed above, an adequate medical opinion was not provided in this matter. Given the above, to ensure that VA has met its duty to assist, remand is necessary to obtain a new medical opinion. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Issue 2: Acquired psychiatric disability. Issue 3: Seizure disorder. Issues 4: Entitlement to SMP. Issue 5: Entitlement to a TDIU. The Board must defer consideration of the claims for an acquired psychiatric disorder, seizure disorder, SMP, and TDIU because these matters are inextricably intertwined with a remanded matter or a matter that must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). As to psychiatric disorder, the record suggests that the Veteran's diagnosed acquired psychiatric disabilities were aggravated by his service-connected physical disabilities. See BVA Decision (October 2019). A September 2020 VAMO noted the Veteran's reports of his "chronic pain" aggravating the mental health symptoms. See C&P Exam (September 2020). However, the available VA examinations of record, including in January 2020, provided opinions only as to whether any diagnosed acquired psychiatric disability is caused or aggravated by the currently service-connected disabilities. Thus, the issue of entitlement to service connection for an acquired psychiatric disorder is inextricably intertwined with the claim for service connection for low back disability remanded herein and must be deferred pending the proposed development. As to seizure disorder, the record suggests that the Veteran's seizures may have a psychogenic etiology. As such, a decision on the remanded issue of service connection for an acquired psychiatric disability could significantly impact a decision on this issue because it would allow for the possibility of secondary service connection. Thus, the issues are inextricably intertwined. As previously noted in the October 2019 Board remand, a decision on the remanded issues of service connection for a low back disability, an acquired psychiatric disability and seizure disorder could significantly impact a decision on the issues of SMP and TDIU. Thus, the issues are inextricably intertwined. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from March 2021 to the Present. Associate copies of all treatment records that have been made available via the VISTA Imaging system with the Veteran's claims folder. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for low back disability, acquired psychiatric disabilities and seizure disorder, to include St. Joseph/Elizabeth. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of the Veteran's current low back disability. Detail the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. Then, the examiner is asked to address the following: (a.) Whether the Veteran has a current back disability that is at least as likely as not (i) began in service or (ii) is caused by or the result of an in-service injury, event, or disease. If the examiner opines that any back complaints from September 2005 fully resolved or are otherwise attributable to a different cause, the examiner must specify the evidence relied upon in formulating the opinion. (b.) For arthritis, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In doing so, the examiner should: (c.) Detail the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service (even if not documented in the STRs) and thereafter represent the onset of any current back disability, this should be noted. (d.) Explain whether the current diagnoses and abnormal findings for the back align with the Veteran's description of his in-service injury(ies) and symptoms as well as his post-service symptoms and documented progression and severity of his reported symptoms. (e.) If another etiology is the more likely cause of the Veteran's back disability, then identify that etiology and fully explain. The conclusions must be supported with data (e.g. history, findings, etc.) along with a reasoned medical explanation connecting the two. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Further, it should, at a minimum, reflect consideration of (1) September 2005 reports of back pain; and (2) the Veteran's reports of pain since service. An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.