Citation Nr: 21070628 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-09 181 DATE: November 24, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, diagnosed as adjustment disorder with anxiety and depression is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The Veteran was diagnosed with adjustment disorder with anxiety and depression in service and has had continuing symptoms ever since. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, diagnosed as adjustment disorder with anxiety and depression have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty military service from October 2006 to March 2011, including service in Iraq for which he was awarded the Combat Action Badge. The Board notes that the Veteran had informed the VA that he was obtaining an attorney to represent him with respect to his claims. In response, in September 2021, the Board sent the Veteran a letter informing him of the need for clarification regarding his representative and providing the documentation necessary to change his designated representative. The letter specified that if the Veteran did not respond within 30 days, his designated representative would remain the Veterans of Foreign Wars as noted in the April 2011 Form 21-22. This matter was previously before the Board in October 2019, when it was remanded for additional VA examinations to address the Veteran's claims. The Veteran was duly scheduled for and notified of the VA examinations in January 2020 but did not report for the scheduled examinations. (See CAPRI, 08/07/2020.) The Board finds that a VA examination is necessary to properly adjudicate the claim of service connection for a low back disability and that a remand to attempt to obtain such an examination is necessary. Entitlement to service connection for an acquired psychiatric disability, diagnosed as adjustment disorder with anxiety and depression The Veteran filed a claim of service connection for posttraumatic stress disorder (PTSD) which, under the principles of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), includes any acquired psychiatric disability. Based on the Veteran's service record, which shows receipt of the Combat Action Badge in service, the occurrence of stressor events in service is considered to be established. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The Veteran's service records show that he was provided a mental health evaluation in service in February 2011. (See Military Personnel Record, 08/04/2015.) The provider at that time diagnosed the Veteran with adjustment disorder with anxiety and depression. The Veteran filed a claim of service connection for possible PTSD, an acquired psychiatric disability, in April 2011, less than one month after his separation from service. In August 2011, the Veteran was diagnosed at a VA facility with adjustment disorder with anxiety and depression. (See CAPRI, 05/30/2013.) The Board notes that the Veteran was provided a VA examination in May 2013 with respect to his claim of service connection for PTSD. (See CAPRI, 05/30/2013.) The Veteran reported that he was not undergoing any mental health treatment but felt that he was likely bipolar. He stated that the smallest things would make him angry and that he tended to "go off" on people. He denied having any depression, sleep disturbance, or nightmares associated with his tour in Iraq. He denied any suicidal ideation, anxiety, or other psychiatric symptoms. The examiner concluded that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD and that the Veteran did not have an Axis I mental health diagnosis, although he included a note of the need to rule out adjustment disorder. The examiner acknowledged the prior diagnosis of adjustment disorder from August 2011. The Board also notes that the Veteran was scheduled for a VA examination in January 2020 but did not report for the examination. In light of the Board's findings herein, the Board finds that failure to report for the examination does not adversely impact his claim of service connection. After a review of all of the evidence of record, the Board finds that the elements of service connection for an acquired psychiatric disability have been met. Specifically, the Veteran has a diagnosis of adjustment disorder during the pendency of this appeal. This is the same diagnosis that was assigned for his mental health issues during his military service. The dates of the two diagnoses were both within the year 2011, which is sufficient to demonstrate a connection between the in-service diagnosis and the current (during the pendency of the examination) diagnosis. Therefore, the criteria for service connection for adjustment disorder with anxiety and depression have been met. The claim is granted. 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran seeks service connection for a low back disability. The record shows that the Veteran was involved in a hard landing by a helicopter in service and was placed on profile for resulting back pain and sacral fracture. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Veteran has not been provided a VA examination for this disability. He was scheduled for a VA examination in January 2020 but did not report for the appointment. It appears from the record that he was having problems with receipt of mail. The Board finds that another attempt to provide the Veteran with an examination and opinion is necessary for adjudicative purposes. In so doing, care should be made to ensure that notice of the examination is sent to the last known address of record. The matters are REMANDED for the following action: Provide the Veteran with a VA examination with respect to his low back disability claim, to include ample notification of the scheduled examination with attention to the mailing address. (Continued on the next page) Specifically, the examiner should perform any necessary imaging studies of the Veteran's spine and should perform range of motion testing, including passive and active ranges of motion and discussions of pain on weight-bearing. The examiner should obtain a clear history of the Veteran's symptoms with respect to his low back disability, to include the impact on his ability to work and engage in daily activities, and the effect of any flare-ups. The examiner must provide an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran currently has a low back disability that is the result of his military service, to include the helicopter accident. In offering the opinion, the examiner is asked to provide a statement of the reasons or rationale for the opinion. This should include citations to any medical evidence of record which informs the opinion as well as any medical research or literature which informs the opinion. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.