Citation Nr: 21075805 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-39 953 DATE: December 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, is dismissed. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT The Veteran's claim for service connection for an acquired psychiatric disorder, claimed as depression, was granted in an August 2021 rating decision. This decision represents a full grant of the benefits sought on appeal. CONCLUSION OF LAW The criteria for dismissal of service connection for an acquired psychiatric disorder, claimed as depression have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1973 to July 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The RO sent the Veteran correspondence in October 2021, requesting that the Veteran complete and sign an updated VA Form 21-22, as the executed form currently associated with the claims file is outdated. The record does not reflect that the Veteran has provided a completed and signed VA Form 21-22. However, Disabled American Veterans (DAV) has represented the Veteran throughout the appeal including, most recently, filing an Appellate Brief on the Veteran's behalf in October 2021. While the Board reiterates the request that the Veteran provide a completed and signed VA Form 21-22, it will continue to name DAV as the Veteran's Power of Attorney. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. During the pendency of the appeal, an August 2021 rating decision granted the Veteran's claims for service connection for unspecified depressive disorder. This decision represents a full grant of the benefits sought on appeal. As there is no case or controversy for the Board to adjudicate, the claim is dismissed. Id. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. When this matter was last before the Board in May 2021, it was remanded, in pertinent part, to obtain an addendum opinion which adequately addressed the etiology of the Veteran's claimed back disability. Specifically, the May 2021 remand pointed out that a previous January 2020 medical opinion was rendered on an inaccurate factual premise, as the examiner failed to acknowledge that the Veteran was treated for back pain during service in 1973. An addendum medical opinion was obtained in June 2021. The examiner acknowledged that the Veteran sought treatment for back pain in December 1973; however, the negative medical opinion was seemingly based on the Veteran's reports at the time of the prior January 2020 examination, that he did not recall back pain being an issue during service or immediately following service. Additionally, the examiner noted that the first subsequent radiographic imaging performed for back pain was not until September 2011, almost 40 years following separation from service. Here, it should be noted that the May 2021 remand specifically instructed the examiner to consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. Additionally, the examiner was also instructed to comment on how the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or were the Veteran's reports generally inconsistent with medical knowledge. Unfortunately, the examiner failed to do so, and based the opinion on the Veteran's reports that he did not recall back pain during or immediately following service. While the January 2020 examiner went into greater detail regarding the progression and etiology of the Veteran's back condition, as noted above, the opinion was rendered without consideration of the Veteran's documented treatment for back pain during service. Thus, making any conclusion reached based on an inaccurate factual premise. In this case, given the degenerative nature of the Veteran's claimed back disability and the medical evidence showing chronic back pain dating back to at least 2010, it is imperative that the medical opinion of record address whether the Veteran's in-service back injury could be in any way related to his current back condition. In other words, notwithstanding the Veteran's reports that he did not recall back pain during or immediately following service and the lack of documented treatment until many years following service, the examiner must still address whether the Veteran's symptoms align with how the currently diagnosed disability is known to develop or if the Veteran's reports are generally inconsistent with medical knowledge. Based on the foregoing, this matter must be remanded for an addendum medical opinion. Finally, as noted above, the record does not reflect that the Veteran has provided an updated VA Form 21-22 for DAV who has represented the Veteran throughout the appeal. Such must be obtained. The matters are REMANDED for the following action: 1. Obtain from the Veteran a completed and signed VA Form 21-22. 2. Arrange for the claims file to be reviewed by a VA examiner with appropriate expertise for the purpose of preparing an addendum opinion with respect to the etiology of the Veteran's back disability. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's back disability had its onset in, or is otherwise related to, service, to include (1) his complaints of back pain in January 1973 and (2) VA treatment records showing reports of chronic back pain dating back to at least 2010. In this regard, the examiner should consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, did the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or were the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Kelly A. Gastoukian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, Associate 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.