Citation Nr: 21075421 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-30 326 DATE: December 20, 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 low back disability is remanded. Entitlement to service connection for left lower extremity radiculopathy, as secondary to a lumbar spine disability, is remanded. Entitlement to service connection for a right lower extremity radiculopathy, as secondary to a low back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1978 to June 1981 and from January 1982 to January 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision of the Department of Veterans Affairs (VA). The claim of service connection for an acquired psychiatric disorder (has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran seeks service connection for PTSD. He contends that his PTSD is related to his military service. Specifically, the Veteran reports drinking while in service. Additionally, he reports that he knew of fellow service members who committed suicide after discharge, that during his second tour, he knew of 4 people who died in car accident at Camp Lejeune and that while not there, he knew of a bombing in Beirut that killed fellow service members, while he was in service. See November 2017 Statement. Service treatment record (STRs) dated in December 1980 show an impression of chronic alcoholism. Non-VA medical records, dated in June 2018, show complaints of feelings of hopelessness, excessive worry, and PTSD symptoms, to include nightmares and flashbacks. A subsequent June 2018 medical record shows an assessment of PTSD. The Veteran was afforded a VA mental disorders examination in May 2018. No mental disorder diagnosis was provided. The examination report reflects that the examiner reviewed the VA e-folder (VBMS) but that the "C-file was not sent for review". The May 2018 VA examiner stated that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that the Veteran was "not diagnosed with depression and PTSD with secondary substance abuse proximately due to or the result of chronic low back pain", based upon medical records in service which evidenced a muscle strain, not compressions. The VA examiner reasoned that the Veteran's plight seemed more exaggerated beyond the natural rehabilitative process of common muscle strain. Furthermore, the Veteran's description of, 'moods of depression,' did not evidence actual symptoms nor behaviors of depression itself, nor, any other mental health condition, symptom or behavior. The examiner further stated that the Veteran did not have any current mental health/ diagnosis/condition/disorder due to the former claimed stressors. The Veteran was afforded a VA mental disorders examination in January 2019, by the same examiner who provided the May 2018 examination. The examiner indicated that the "C-file was not sent for review". The examiner found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria and that he did not have a mental disorder that conformed with DSM-5. The January 2019 VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner stated that the Veteran was not diagnosed with PTSD during service and that his claim was inadequate to sustain a PTSD diagnosis. In this case, while the examination reports note an in-person examination and a review of the Veteran's VBMS records, the reports also indicated that the Veteran's VA claims file was not reviewed. Accordingly, the examination reports are unclear as to whether the VA examiner reviewed the Veteran's claims file, to include non-VA medical records, specifically records which show an assessment of PTSD. To this extent, the criteria for having a current disability is met if the Veteran had the disability at any time during the pendency of the appeal, even if such disability is now resolved. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Although the May 2018 and January 2019 VA examiner found that the Veteran did not have a current mental disorder, the evidence of record shows that the Veteran has been diagnosed as having PTSD. See private treatment records (October 2020). Therefore, a remand is necessary to schedule the Veteran for a VA examination regarding his claim of service connection for an acquired psychiatric disorder. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for a low back disability is remanded. The Veteran seeks service connection for a low back disability. He contends that his low back disability is related to his military service. The Veteran reports that while participating in maneuvers in 1979, wearing a 70-pound backpack, he turned and experienced extreme pain in his lower back. He also asserts that he experienced pain again in 1983. He states that he has problems on a daily basis, ranging from slight irritation to constant aching. See November 2017 Statement. STRs dated in August 1983 show a complaint of back pain and tightness, from what appeared to be a muscle spasm. An assessment of muscle pull, strain, was provided. Non-VA medical records, dated in October 1988, shows complaints of back pain. A medical record, dated in December 2017, shows complaints of aching lower back pain. An assessment of chronic, ongoing lower back pain was provided. The Veteran was afforded a VA examination in May 2018. Diagnoses of degenerative disc disease, thoracolumbar spine, and osteoarthritis of the lower spine were provided. The VA examiner noted that there was a slight dextroconvex curvature of the mid thoracic spine and slight rotatory levoconvex curvature of the upper lumbar spine seen on x-ray, which represented a measured Cobb's angle of less than 5 degrees [each], that were within the normal limits of spinal asymmetry and have no long-term clinical significance. A reference to an article was included. The VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. A review of the Veteran's claims file, to include a note of the Veteran's military occupational specialty and private and VA medical records was indicated. The VA examiner noted a record dated in September 1979, the Veteran's separation examination dated in June 1981, a September 1982 medical note, and an August 1983 medical note. The VA examiner stated that although there was record of treatment in service for lower back muscle strain or spasm, and possible sciatica, no permanent residual or chronic disability subject to service connection was shown by the service medical records or demonstrated by evidence following service. The Veteran had engaged in highly physical occupational activities after 1981, and re-enlisted due to lack of work in 1982. He was deemed fit for duty and after military discharge in 1984, again engaged in highly physical occupational and recreational activities until 1986, when incarcerated. The VA examiner stated that low back pain was a common complaint among adults in the U.S., affecting 84 percent of all adults at some time in their lifetime. The Veteran had no current lower back diagnosis at the time of examination and pain was a symptom, not a medically diagnosed condition. Muscle spasms or muscle strain were acute conditions which resolve with conservative management. Radiographic evidence obtained during the VA examination revealed a medical diagnosis of degenerative disc disease, thoracolumbar spine and osteoarthritis, L5-L6 spine. These were changes that were typical with aging; the Veteran's other risk factors are obesity, smoking history, and sedentary lifestyle. Therefore, it was less likely than not that the Veteran's chronic low back pain was incurred in or caused by the complaints active duty during service. An October 2018 VA examination report shows diagnoses of degenerative disc disease, thoracolumbar spine and osteoarthritis of the lower spine were again provided. The VA examiner noted a review of the Veteran's claims file to include a review of the medical records supplied from the Michigan Department of Corrections. The VA examiner noted when the Veteran had reported back symptoms both while in service and post service. The VA examiner noted that after incarceration, the Veteran engaged in physical tasks, including lifting heavy boxes and mopping/cleaning activities. There were occasions within the medical records following discharge of complaints of acute low back pain in 1988, 1992, and 2002, after physically strenuous activity; this did not represent a chronic condition of the back. The VA examiner stated that low back pain was a common complaint among adults in the U.S.; again, the Veteran had no lower back diagnosis at the time of examination in May 2018. Radiological findings in May 2018 noted mild to moderate thoracic degenerative disc disease and severe lumbar degenerative disc disease. Given the Veteran's advancing age and risk factors of obesity, smoking history, physically strenuous work, and sedentary lifestyle, this was an expected finding, and not related to any event or injury during his military service some 34 years later. Muscle spasms or muscle strain which were diagnosed during active duty, were acute conditions which resolved with conservative management. This was further evidenced by the Veteran's separation examination which was silent for back complaints. The Board finds that the VA examinations are unclear as to the Veteran's low back disability. For instance, in the October 2018 VA examination report, the examiner indicated the Veteran had no lower back diagnosis at the time of examination in May 2018, but then also stated that x-rays in May 2018 showed mild to moderate thoracic degenerative disc disease and severe lumbar degenerative disc disease. Therefore, a remand is necessary to obtain an addendum opinion, from the October 2018 examiner, if possible, regarding the Veteran's low back diagnoses during the appeal period. 3. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a lumbar spine disability, is remanded. 4. Entitlement to service connection for a right lower extremity radiculopathy, to include as secondary to a low back disability, is remanded. The Board finds that claims of service connection for a left lower extremity disability and right lower extremity disability are inextricably intertwined with the remanded claim of service connection for a low back disability. Accordingly, a remand is warranted pending adjudication of the aforementioned claim. If, the Veteran's low back disability is found is related to his service, then an examination with a medical opinion should be obtained to address any relationship between the service-connected condition and the Veteran's claimed bilateral lower extremity disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding his claim of service connection for an acquired psychiatric disorder. The examiner should review the entire claims file, before answering the following: a. The examiner should identify all psychiatric disorders that have existed since the date of the Veteran's claim in July 2018 (even if now asymptomatic or resolved). The examiner should address the private treatment reports that show a diagnosis of PTSD. b. If the examiner finds that the Veteran's meets the criteria for PTSD, the examiner must identify the specific stressor(s). c. Then, as to any such disability other than PTSD, the examiner should indicate whether it is as least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder had its onset in service, or is otherwise related to service. In rendering an opinion, the examiner should consider the lay statements and articles submitted in support of the Veteran's claim. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. Obtain an addendum opinion from the October 2018 VA back examiner, if possible, or from another VA physician, regarding the Veteran's claim of service connection for a low back disability. After a review of the claims file, the examiner should identify all of the Veteran's low back disabilities since the date of his claim of service connection for a low back disability in July 2018. 3. If the Veteran's low back disability is found to be service connected, schedule the Veteran for a VA medical examination by an appropriate medical professional to address the nature and etiology of the Veteran's left lower extremity and right lower extremity disabilities. The examiner is asked to specifically address the following questions: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's left lower extremity and/or right lower extremity disability was caused or aggravated by the Veteran's service-connected low back disability. A complete rationale must be provided for all opinions expressed and conclusions reached. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.