Citation Nr: 21076514 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-36 667 DATE: December 27, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1985 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2015 and November 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran testified at a virtual video conference hearing before the undersigned Veterans Law Judge of the Board in January 2021. A transcript of the hearing has been associated with the claims file. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as a claim for entitlement to service connection for other specified personality disorder mixed with personality features (claimed as PTSD) only. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder and anxiety disorder. 1. Entitlement to service connection for a lumbar spine disorder is remanded. The Veteran contends that his lumbar spine disorder is due to his service. At his Board hearing in January 2021, the Veteran maintained that he injured his lumbar spine on active duty while lifting up an eyewash station that was about to fall on another soldiers. The Veteran also testified regarding being struck by a truck while on a bike; he suffered scratches and abrasions, and his back was reinjured during that accident. The Veteran testified that he was prescribed muscle relaxers for his back while on active duty and he continued to experience back pain after service, when he sought treatment, he was told that he was already on muscle relaxers but they were for his jaw condition. After service, he testified that he stopped taking medication for his back so that he would be able to pass the physical for employment and that his back began bothering him more after doing repetitive work every day while working in a factor; however, his back was a continuation of the problem he had in service. The Veteran testified that he simply reinjured the original back injury he sustained in service, that he indicated that he continued to work until the back got so bad that he couldn't work anymore and that his employer had hired an attorney and they determined that his medical records showed that he had a prior back injury in the military. The Veteran testified that the administrative judge ruled that even though he had an injury in service, it cascaded into the problem he was having, and he was awarded workers compensation. The service treatment records reflect that, in March 1987, the Veteran was seen for complaints of low back pain after twisting his lower back while working on an eye wash station; he denied any previous injuries to the lower back. The assessment was musculoskeletal sacroiliac sprain. Submitted in support of the Veteran's claim is a statement from Dr. N.L., dated in October 2013, indicating that he examined the Veteran had been diagnosed with lumbar disk herniation with myelopathy, status post lumbar fusion. The physician opined that the Veteran's current back condition is most likely caused by or a result of an injury to the low back due to an incident that occurred on March 24, 1987. The physician explained that the crushing type injury caused sacroiliac sprain on the lumbar spine and found to have disk herniation of the L5-S1, which was fused in 1992 with no other incident of trauma and that the injury in 1987 is probably the cause of his low back issue. However, the speculative terminology used by this physician does not provide a sufficient basis for an award of service connection for a lower intestinal disorder. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). The Veteran underwent a VA examination in October 2014. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner noted that the service treatment records document injury to the back in March 1987 and low back pain associated with an upper respiratory infection in May 1987; there were no other notations regarding low back pain in his service medical records. The examiner also noted that the Veteran reported being involved in litigation due to an on-the-job injury to his back in March 1992. The examiner indicated that the Veteran claimed that in the Workman's Compensation claim, the Veteran's employer claimed that his back condition was actually preexisting; however, those records were not made available to him. The examiner concluded that there simply was no evidence to show that there was persistence of a back problem after the initial 1987 back injury. The Board finds this etiology opinion to be inadequate as the examiner failed to address the Veteran's contentions that he injured his back while in service and has experienced back pain ever since his military service. Of record is another medical statement from Dr. N. L., dated in March 2018, indicating that he had personally reviewed the Veteran's medical history; he also reviewed the circumstances and events of his military service, which include injury to the lower back in 1987 while in military service. The physician indicated that the Veteran has been under his care since 2013, and that his diagnosis is sacroiliac sprain on the left and L5-S1 disk herniation. The physician stated that, after reviewing the pertinent records, it was his opinion that it is more likely than not that the Veteran's condition is a direct result of his crush type injury as due to military service. However, a rationale for this opinion was not provided. See Nieves-Rodriguez v. Peake, supra. In a statement in support of the claim, dated in January 2021, Dr. J. A. indicated that he has been treating the Veteran for many years. Based upon the history from the Veteran and without actually reviewing imaging from before and after injuries, he has suffered an injury to his back while serving in military service. The physician stated that the injury has led to a cascade of events leading to multiple injuries including posterior spinal fusion, transforaminal lumbar interbody fusions, lateral interbody fusions, and revision surgeries. However, a rationale for this opinion was not provided. See Nieves-Rodriguez v. Peake, supra. As there is no probative etiology opinion of record, an etiology opinion should be obtained on remand. Once VA provides an examination, it must be adequate, or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). On remand, such an opinion should be obtained. In addition, as noted above, during his January 2021 hearing, the Veteran testified at this Board hearing that he was awarded worker's compensation for an injury to his back while working at a factory in 1992, following his discharge from service. However, there are no records related to worker's compensation in the claims file. As these records may be relevant to the Veteran's service connection claim for a lumbar spine disorder, they should be requested on remand. 2. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, depressive disorder and anxiety disorder is remanded. The Veteran asserts that he suffers from an acquired psychiatric disorder that is related to his military service. Specifically, he contends that during service he was the victim of a personal assault or military sexual trauma. At his personal hearing in January 2021, the Veteran testified that, during service, his roommate sexually assaulted him when he had too much to drink; when he complained, his commander would say that's how males behaved. The Veteran reported that he was followed by Dr. M. M. who related his current psychiatric condition to what happened in service. The Veteran also testified that he was currently being treated for depression because of the back pain. As an initial matter, as the Veteran's claim is predicated upon miliary sexual trauma, remand is necessary to allow VA to attempt to corroborate the Veteran's reported stressor and to send the Veteran appropriate notification as required under 38 C.F.R. § 3.309(f)(5). The Veteran was afforded a VA examination in October 2016. Following the examination, the examiner indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria; however, she reported a diagnosis of adjustment disorder with anxiety. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner stated that there were no "markers" in service treatment records or military personnel records to substantiate a claim of military sexual trauma; however, she also noted that this is not necessarily indicative that events alleged by Veteran did not occur. The examiner indicated that the Veteran did not endorse symptoms consistent with a diagnosis of PTSD; rather, he stated that the Veteran was endorsing anxiety symptomatology which appear to be related to current psychosocial occupational stressors. The rationale provided by the examiner was that she was unaware of scientific literature that has established a probability of the occurrence of personal trauma, physical assault, or sexual assault based on the information contained in the Veteran's records. The examiner stated that she could not resolve the question without resorting to mere speculation. Of record is a statement from Dr. M. M., dated in March 2018, indicating that the Veteran has been under her care since August 2017; she noted that his diagnoses include major depressive disorder, recurrent, without psychotic features. The physician stated, after reviewing the pertinent records, it was her professional opinion that it is more likely that the Veteran's mental health condition is a direct result of the undue stress experienced while in military service. The physician further stated that, in her personal experience, being subjected to undue stress while on duty and experiencing severe pain associated with his medical condition has generated severe anxiety and preoccupation regarding his physical illness, depression given that his pain will not go away rather than he must learn to manage it and psychomotor agitation. However, this opinion was not provided with a sufficient rationale. See Nieves-Rodriguez v. Peake, supra. As there is no probative etiology opinion of record, an etiology opinion should be obtained on remand. Once VA provides an examination, it must be adequate, or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). On remand, such an opinion should be obtained that addresses all of the Veteran's diagnoses. The matters are REMANDED for the following actions: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. With any necessary assistance from the Veteran, obtain any records regarding his Worker's Compensation claim and history from any indicated source. For private records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The RO should undertake all necessary development to verify the Veteran's alleged PTSD stressors. In doing so, the Veteran should be informed of all potential sources of permissible evidence in substantiating a claim for PTSD due to military sexual trauma or in-service personal assaults, as set forth in 38 C.F.R. § 3.304(f)(5). 4. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed lumbar spine disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed lumbar spine disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically address the Veteran's contentions regarding a continuity of symptoms as well as his contentions that he suffered a back strain after lifting an eye wash station during service. The examiner is asked specifically to discuss the Veteran's lay statements as well as the Veteran's March 1992 work related injury in his findings. Any medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23Vet. App.382 (2010). 5. Following the receipt of outstanding records, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and any other mental disorders found. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) As the Veteran's stressors are based on an in-service sexual assault, the examiner must opine on whether the evidence of record, including the Veteran's lay statements and any other evidence of record, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304 (f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not (50 percent probability or greater) related to the in-service sexual assault. Further, to the extent that the Veteran experienced a sexual assault during active service, opine whether this is sufficient to support a diagnosis of PTSD. (B) For any other diagnosed acquired psychiatric disorder other than PTSD, is i at least as likely as not (50 percent probability or greater) that each such diagnosis began during active service, to include related to an in-service injury, event, or disease? The examiner should address the Veteran's private psychiatric evaluation, dated in August 2017, submitted in January 2021. The examiner must provide a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.