Citation Nr: 21072426 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-05 037A DATE: December 3, 2021 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder and generalized anxiety disorder, is granted. New and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. Service connection for a low back disability is granted. REMANDED The appeal regarding entitlement to service connection for right lower extremity radiculopathy is remanded. The appeal regarding entitlement to service connection for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder is related to service. 2. In an October 2006 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a low back disability; the Veteran did not appeal. The AOJ denied a petition to reopen in July 2013; the Veteran did not appeal. 3. The evidence received since the July 2013 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 4. The Veteran's low back disability is related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for an acquired psychiatric disorder, to include major depressive disorder and generalized anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The July 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 4. The criteria to establish service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1985 to February 1989. He also had subsequent periods of service in the National Guard and Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in July 2021. A transcript is of record. Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Psychiatric Disorder The Veteran asserts that his psychiatric disorder began during his period of active service and has continued since. See July 2021 Board Hearing Tr. at 19. As an initial matter, the Board observes that the AOJ originally denied service connection for a psychiatric disorder in an October 2002 rating decision. On various occasions, the AOJ subsequently found that the Veteran had not submitted new and material evidence to reopen this claim. Pursuant to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when it first decided the claim, VA is required to reconsider the claim de novo. See Kisor v. Shulkin, 869 F.3d 1360 (2017); George v. Shulkin, 29 Vet. App. 199 (2017). This means that when relevant service records are newly associated with a claimant's file, VA has a duty to reconsider the Veteran's previously denied claim on the merits. In this case, in April 2016, the Veteran's attorney submitted records of the Veteran's 1988 psychiatric hospitalization. These records were not in the claims file at the time of the AOJ's 2002 rating decision. Thus, the Board may address the merits of this claim without first determining whether new and material evidence has been received. Regarding the existence of a current disability, a June 2021 private psychological evaluation by P.D.W., Ph.D. indicates diagnoses of major depressive disorder and generalized anxiety disorder. Service treatment records reflect that the Veteran was admitted to Tripler Army Medical Center in December 1988. On discharge two days later, the diagnosis was adjustment disorder with depressed mood. In the June 2021 evaluation report, Dr. W. indicated that he had reviewed the Veteran's service treatment and personnel records, as well as his VA treatment records to include the report of a December 2016 VA examination. As noted, he indicated diagnoses of major depressive disorder and generalized anxiety disorder. Following interview, mental status examination, and an in-depth review of the Veteran's history, he concluded that the Veteran's anxiety and depression were chronic, and were the result of his military service. Considering the above discussion, the Board concludes that service connection for the Veteran's acquired psychiatric disorder is warranted. In reaching this conclusion, the Board notes that Dr. W. conducted a complete examination and provided a highly detailed report detailing the Veteran's in-service treatment and diagnoses and his description of symptoms in the years following service. Dr. W. provided a reasoned opinion based on a complete review of the Veteran's history, interview and examination. In assigning high probative value to this opinion, the Board notes that Dr. W. reviewed the Veteran's service and VA records, and conducted a detailed interview and mental status examination. There is no indication that Dr. W. was not fully aware of the Veteran's history or that he misstated any relevant fact. Thus, the evidence supports a finding that the Veteran's current acquired psychiatric disorder is related to service, and service connection is granted. Low Back Disability The Veteran asserts that his current low back disability is related to a fall from a tree stand in November 1986. He has testified that he has experienced symptoms since that incident. See July 2021 Board Hearing Tr. at 10-11. Regarding a current disability, the record reflects that he was diagnosed with arthritic changes in March 2005. Lumbar strain was diagnosed on VA examination in September 2006. A March 2008 VA neurosurgery note indicates degenerative disc disease at two levels, and a small focal L5-S1 disc herniation. Service treatment records reflect that the Veteran was seen with complaints of back pain in November 1986. He reported that he fell from a tree, landing on his feet, and felt pain shooting to his back. He underwent physical therapy and was placed on profile. In February 1989, the Veteran declined a separation examination. An April 2007 VA administrative note authored by a neurosurgeon indicates that the Veteran had significant disc disease and facet pain that might have been aggravated by a fall on active duty in 1986. An October 2008 line of duty determination completed by an Army physician indicates that the Veteran experienced acute low back pain in November 1986 after falling out of a tree and was seen at the Troop Medical Clinic at Ft. Jackson. He noted that the Veteran had a hard fall and had experienced recurrent back pain since that time. He concluded that the Veteran's injury was in the line of duty and had resulted in chronic back pain and left paracentral disc herniation. In May 2012, the Veteran's chiropractor noted that the Veteran had experienced back pain and stiffness since his 1986 injury. He pointed to imaging revealing disc degeneration in the lumbar spine and mild acquired scoliosis. He indicated that the Veteran's fall during service might have been the cause for the current degeneration, which was a plausible result from such a fall. Considering the above discussion, the Board concludes that service connection for the Veteran's low back disability is warranted. In reaching this conclusion, the Board notes that the Veteran has competently reported that he has experienced symptoms related to his low back since the November 1986 injury. His VA neurosurgeon and private chiropractor have suggested a relationship between his disc disease and facet pain and the in-service injury. Moreover, his back pain and disc herniation were found by a military provider in October 2008 to be related to the 1986 injury and incurred in the line of duty. Thus, the record as a whole supports a finding that the Veteran's current low back disability is related to service, and service connection is granted. REASONS FOR REMAND In December 2017, the Veteran's attorney identified treatment at the VA Mount Vernon, Missouri outpatient clinic. The most recent VA treatment records associated with the claims file date to December 2016. Updated records should be obtained. The Veteran seeks service connection for radiculopathy of the bilateral lower extremities as a manifestation of his low back disability. The current record is unclear as to whether there are lower extremity neurological manifestations related to his low back disability. In light of the Board's grant of service connection for the Veteran's low back disability, consideration must be given to whether there are associated neurological manifestations that should be separately evaluated. An examination is necessary. The matters are REMANDED for the following action: 1. Obtain VA treatment records for the period from December 2016 to the present, to include from the Mt. Vernon, Missouri VA outpatient clinic. 2. Then, schedule the Veteran for an examination to determine whether he experiences neurological manifestations of the lower extremities related to his service-connected low back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all relevant neurological conditions referable to the Veteran's lower extremities. The examiner should provide an opinion regarding whether it is at least as likely as not that any such condition is related to the Veteran's now service-connected low back disability. 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. (Continued on the next page) 3. Then, readjudicate the Veteran's claims. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.