Citation Nr: 21073455 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-14 989 DATE: December 8, 2021 REMANDED Service connection for an acquired psychiatric disability is remanded. Service connection for alcoholism is remanded. Service connection for a neurological disability of the bilateral upper extremities is remanded. Service connection for a neurological disability of the bilateral lower extremities is remanded. Service connection for a headache disability is remanded. Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for a bilateral shoulder disability is remanded. Service connection for a cervical spine disability is remanded. Service connection for a lumbar spine disability is remanded. Service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to October 1976 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2014 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In June 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. As a matter of clarification, while the psychiatric claim on appeal was developed as separate claims for posttraumatic stress disorder and for anxiety/depression, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), they have been combined and recharacterized to more broadly include any acquired psychiatric disability. 1. Service connection for an acquired psychiatric disability is remanded. 2. Service connection for alcoholism is remanded. 3. Service connection for a neurological disability of the bilateral upper extremities is remanded. 4. Service connection for a neurological disability of the bilateral lower extremities is remanded. 5. Service connection for a headache disability is remanded. 6. Service connection for bilateral hearing loss is remanded. 7. Service connection for tinnitus is remanded. 8. Service connection for a bilateral shoulder disability is remanded. 9. Service connection for a cervical spine disability is remanded. 10. Service connection for a lumbar spine disability is remanded. 11. Service connection for a bilateral foot disability is remanded. With regard all of the claims on appeal, remand is required in order to attempt to obtain outstanding VA treatment records. At the June 2021 hearing, the Veteran testified that shortly after discharge, he received treatment at the Brentwood VA facility in Los Angeles, California, and at the Brookfield VA facility in Cleveland, Ohio. Hearing Transcript, pp. 16-17. He testified that despite the time that has passed, he believes the records still exist. A review of the claims file does not reveal the presence of records from either facility, or any attempts previously made to obtain them. When the Veteran sufficiently identifies VA medical records that he or she desires to be obtained, VA must seek those records, even where they do not appear relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Further, as the most recent VA treatment notes of record, dated from February 2017, are now nearly five years old, any updated records should be obtained on remand. Additionally, VA treatment records indicate the Veteran is currently receiving disability benefits through the Social Security Administration for several disabilities, including his acquired psychiatric disability, lower extremity pain, and lumbar spine disability. See, e.g., May 2013 & July 2014 VA Treatment records. As these records are relevant to the current appeal, they should be requested. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). With regard to the claim for an acquired psychiatric disability, efforts must be made to attempt to verify the Veteran's reported in-service psychiatric stressor. At the June 2021 hearing, he testified that he was confined to the brig for a period of time during military service, and while there, he witnessed the suicide of an individual in the cell directly across from him. He further testified that he was made to clean up the blood on the floor following the suicide. A review of his service treatment records indeed documents that he underwent a "brig confinement physical" on June 21, 1976. No actions have yet been taken to verify this stressor, and efforts must be made prior to appellate adjudication. Additionally, a VA examination has not yet been obtained and must be afforded for the claims involving an acquired psychiatric disability, headaches, the bilateral shoulders, cervical spine, lumbar spine, feet, and bilateral upper and lower neuropathy. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting 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 the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Veteran has current disabilities for each of the above claims. Specifically, he has been diagnosed with depression and anxiety (July 2016 VA treatment record), peripheral neuropathy and polyneuropathy (July 2106 VA treatment record), headaches (January 2003 VA treatment record), right shoulder arthritis (March 2012 VA treatment record), left shoulder numbness (April 2014 VA treatment record), cervical spondylosis and loss of lordosis (October 2014 VA treatment record), lumbar spinal disc disease (July 2016 VA treatment record), and keratoses of the feet (February 2012 VA treatment record). At the June 2021 hearing, the Veteran testified that his psychiatric symptoms arose during service due to not being able to successfully complete his desired program in the nuclear power field, and as a result of the suicide he witnessed. As for headaches, he testified that the disability arose during service while working around continuous noise in the engine room. As for the remaining disabilities, he testified that his symptoms arose during service due to the rigors of daily work as an electrician crawling through small spaces, pushing and pulling heavy objects, and working from a position on his back for prolonged periods of time. He testified that he has experienced symptomatology related to the disabilities on appeal since military service. Service treatment records show the Veteran's confinement to the brig in June 1976, as well as psychiatric symptomatology in April 1976. He sought treatment for foot pain and callouses in October and November 1975. Personnel records further indicate that he completed training in and worked in the field of electrical repair during military service. As the Board finds evidence of current disabilities for the claims, and evidence of pertinent in-service symptomatology, an examination addressing direct service connection is required under McLendon. 20 Vet. App. at 81-82. While the Board acknowledges that the Veteran, as a lay person, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex as those above, his assertions of symptoms in and since service are sufficient to overcome the lower threshold of McLendon. Therefore, VA's duty to obtain a medical opinion addressing direct service connection is triggered, and the Board must remand for examinations to fulfill VA's duty to the Veteran. With regard to the claim for alcoholism, generally, VA compensation may not be paid for primary substance abuse disabilities, or for secondary disabilities arising from primary abuse. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1, 3.301. However, compensation may be paid for substance abuse that is secondary to, or a symptom of, a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Allen, 237 F. 3d at 1381. On remand, the psychiatric examiner must address whether the Veteran's alcoholism is secondary to his psychiatric disability as contended (Hearing Transcript, p. 2), in the event that service connection is awarded for the psychiatric disability. As the medical records further indicate that he has "alcoholic polyneuropathy," an opinion with a supporting rationale should also be obtained clarifying this matter. See, e.g., October 2016 VA treatment record. The matters are REMANDED for the following action: 1. Request the following VA treatment records pertaining to the Veteran, seeking any clarification from him as needed: (a) all records from the Brentwood VA facility in Los Angeles, California dated from the1970s onward (which may be now known as the VA Greater Los Angeles Healthcare System); (b) all records from the Brookfield VA facility in Cleveland, Ohio dated from the 1980s onward (which may be now known as the Louis Stokes Cleveland VA Medical Center); and (c) all VA treatment records dated since February 2017. All requests made and responses received must be documented for the file. 2. Obtain from the Social Security Administration a copy of any decision regarding a claim for disability benefits filed by the Veteran, as well as copies of all medical records underlying the decision. 3. Ask the Veteran to provide any further identifying information he has concerning his in-service psychiatric stressor wherein he witnessed the suicide of an individual confined in the brig across from him between June 1976 and October 1976, and was forced to clean up the blood from the incident. Thereafter, take appropriate actions to verify the stressor. 4. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his acquired psychiatric disability. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (A.) The examiner is requested to first clearly identify all current psychiatric disabilities. If the examiner disagrees with prior findings, including the July 2016 VA treatment record documenting depression and anxiety, he/she should explain why. (B.) Opine on whether it is at least as likely as not that any current psychiatric disability began during active service or is related to an in-service injury, event, or disease. In doing so, please consider the psychiatric symptomatology documented in the April 1976 service treatment record and the Veteran's reports of witnessing a suicide while confined to the brig. (C.) If the Veteran is diagnosed with PTSD, opine whether it is at least as likely as not related to a verified in-service stressor. (D.) Opine as to whether it is at least as likely as not that the Veteran's alcohol abuse is a primary disorder or a secondary disorder caused or aggravated by his acquired psychiatric disability. 5. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of the disabilities listed below. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (i.) neurological disability of the arms (ii.) neurological disability of the legs (iii.) headache disability (iv.) bilateral shoulder disability (v.) cervical spine disability (vi.) lumbar spine disability (vii.) bilateral foot disability (A.) Opine on whether it is at least as likely as not that ANY of the above disabilities began during active service or are related to an in-service injury, event, or disease, to include the rigors of daily work as an electrician crawling through small spaces, pushing and pulling heavy objects, and working from a position on his back for prolonged periods of time. As for the feet, please also consider the treatment for foot pain and callouses in October and November 1975. (Continued on the next page) (B.) Neurological Disabilities - If, and only if, the psychiatric opinion obtained in response to the above remand directive indicates that the Veteran has an alcohol abuse disorder secondary to an acquired psychiatric disability (for which an award of service connection has yet to be determined), opine on whether it is at least as likely as not that the Veteran's neurological disabilities of the arms and/or legs have been (i.) caused or (ii.) aggravated (i.e., worsened) by the Veteran's alcohol abuse disorder. L.M. YASUI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.