Citation Nr: 21076541 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-21 772 DATE: December 27, 2021 ORDER 1. New and material evidence to reopen the claim for service connection for a right foot disability has been received, and the claim is reopened. 2. New and material evidence to reopen the claim for service connection for a lumbar spine disability has been received, and the claim is reopened. 3. The reopened claim of entitlement to service connection for a right foot disability is denied. REMANDED 4. Entitlement to service connection for a psychiatric disorder, to include schizophrenia, schizoaffective disorder, and/or depression, is remanded. 5. The reopened claim of entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In an August 2003 rating decision, the agency of original jurisdiction (AOJ) denied service connection for a right foot disability based on a finding that the Veteran did not have an in-service injury or treatment for a right foot disability. The Veteran was notified of the decision, including his appellate rights. He did not appeal the decision. 2. In a March 2012 rating decision, the AOJ denied reopening the Veteran's claim for service connection for a right foot disability. The Veteran was notified of the decision, including his appellate rights. He did not appeal the decision. 3. Evidence submitted subsequent to the March 2012 rating decision denying reopening the claim for service connection for a right foot disability relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for a right foot disability. 4. In a December 2008 rating decision, the AOJ denied service connection for a lumbar spine disability based on a finding that the Veteran did not have a current disability or nexus to service. The Veteran was notified of the decision, including his appellate rights. He did not appeal the decision. 5. In a March 2012 rating decision, the AOJ denied reopening the Veteran's claim for service connection for a lumbar spine disability. The Veteran was notified of the decision, including his appellate rights. He did not appeal the decision. 6. Evidence submitted subsequent to the March 2012 rating decision that denied reopening the claim for service connection for a lumbar spine disability relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a lumbar spine disability. 7. The preponderance of the evidence is against a finding that a right foot disability had its onset during active duty or is otherwise related to active duty. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for a right foot disability on the basis of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the claim for service connection for a lumbar spine disability on the basis of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had served on active duty from November 1976 to April 1977 and from November 1979 to December 1989. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing was prepared and associated with the claims file. New and Material Evidence If a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Only evidence presented since the last final denial on any basis (whether by the Board or AOJ, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims. 1. New and material evidence to reopen the claim of service connection for a right foot disability At the April 2021 Board hearing, the Veteran asserted he has submitted new and material evidence sufficient to reopen the claim for service connection for a right foot disability and that the current right foot disability was the result of an injury he sustained when he landed from a parachute jump. The claim for service connection for a right foot disability was initially denied in an August 2003 rating decision based on a finding that the Veteran did not have a disease or injury involving the right foot during service. The Veteran was notified of this determination in an August 2003 letter, which included information about his appeal rights. He did not appeal this decision. Thus, the August 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the August 2003 rating decision included the service treatment records and VA treatment records. At that time, the evidence showed a current right foot disability but no in-service disease or injury and no nexus to service. In December 2010, the Veteran filed an application to reopen the claim for service connection for a right foot disability. In a March 2012 rating decision, the AOJ denied reopening the Veteran's claim. Essentially, the evidence still did not show an in-service disease or injury or a nexus to service. The Veteran was notified of this determination in a March 2012 letter, and he did not appeal this decision. This rating decision is final. In December 2012, the Veteran refiled an application to reopen the claim, and a November 2013 rating decision continued the denial due to no new and material evidence being received. The Veteran then filed a notice of disagreement. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in March 2012. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156(a). Since the March 2012 rating decision, the Veteran has submitted a December 2014 "Service Connected Questionnaire" from Sneha Suthar, D.P.M. Within the document, Dr. Suthar responded affirmatively when asked if it was as likely as not that the Veteran's right foot condition was caused or aggravated by his time in service. This evidence is new because it was not previously submitted. This evidence is also material because it pertains to one of the bases for the prior denial and raises a reasonable possibility of substantiating the claim. In this regard, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. This, at a minimum, establishes a nexus between the post-service right foot disability and service. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a right foot disability. See 38 C.F.R. § 3.156(a). The reopened claim for service connection for a right foot disability is adjudicated below. The Veteran submitted a January 2013 letter from a VA physician wherein he documented he was treating the Veteran for a right foot disability, which disability was chronic. This document was submitted within one year of the March 2012 rating decision, which denied reopening the claim. Thus, the Board has considered whether the March 2012 rating decision did not become final under the provisions of 38 C.F.R. § 3.156(b). In other words, the Board has reviewed that evidence to see if it established new and material evidence within one year of the March 2012 rating decision. However, at the time of the March 2012 rating decision, there was evidence in the file already that the Veteran had a current right foot disability. Thus, the January 2013 letter confirmed a fact that was already of record, which would not be new and material evidence. The March 2012 rating decision is final. 2. Evidence to reopen the claim for service connection for a lumbar spine disability has been received. At the April 2021 Board hearing, the Veteran asserted he has submitted new and material evidence sufficient to reopen the claim for service connection for a lumbar spine disability and that his lumbar spine disability had its onset in service from parachute jumps and/or is caused or aggravated by the right foot disability, which he alleges had its onset during service. The claim for service connection for a lumbar spine disability was initially denied in a December 2008 rating decision based on a finding that the Veteran did not have a current disability or nexus in service. The Veteran was notified of this determination in a December 2008 letter, which included information about his appeal rights. He did not appeal this decision. Thus, the December 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the December 2008 rating decision included the service treatment records and VA treatment records. The service treatment records showed an in-service complaint of low back pain, but the post-service records at that time did not show evidence of a current lumbar spine disability or a nexus between the current disability and service. In December 2010, the Veteran filed an application to reopen the claim for service connection for a lumbar spine disability. In a March 2012 rating decision, the AOJ denied reopening the Veteran's claim. At that time, the evidence showed that the Veteran had a current lumbar spine disability, but there was still no evidence of a nexus between the post-service lumbar spine disability and service. The Veteran was notified of this determination in a March 2012 letter and did not appeal this decision. This rating decision is final. In December 2012, the Veteran refiled an application to reopen the claim, and a November 2013 continued the denial due to no new and material evidence being received. The Veteran then filed a notice of disagreement. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in March 2012. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156(a). The Veteran submitted a January 2013 letter from a VA physician wherein he documented he was treating the Veteran and that the Veteran had been diagnosed with chronic back pain, lumbar spondylosis, and low back pain. Additionally, there is a September 2014 "Service Connected Questionnaire" from Nazra Baluch, M.D., that was submitted in support of the Veteran's claim. Dr. Baluch wrote that the Veteran's lumbar spine disability occurred as a result of the right foot history. This evidence is new because it was not previously submitted. This evidence is also material because it pertains to the bases for the prior denial and raises a reasonable possibility of substantiating the claim. In this regard, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a lumbar spine disability. See 38 C.F.R. § 3.156(a). The Board notes that the January 2013 letter from a VA physician confirming that the Veteran had a current lumbar spine disability was received within one year of the March 2012 rating decision, which denied reopening the claim. Thus, the Board has considered whether the March 2012 rating decision did not become final under the provisions of 38 C.F.R. § 3.156(b). In other words, the Board has reviewed that evidence to see if it established new and material evidence within one year of the March 2012 rating decision. However, at the time of the March 2012 rating decision, there was evidence in the file already that the Veteran had a current lumbar spine disability. Thus, the January 2013 letter confirmed a fact that was already of record, which is not new and material evidence. Therefore, the March 2012 rating decision is final. Service Connection 3. Entitlement to service connection for a right foot disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 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. Initially, the Board notes that while the AOJ stated within the March 2018 statement of the case that the claim was not reopened, it adjudicated the claim on the merits, as it addressed the three elements of service connection and explained why the in-service and nexus elements were not met. This is an adjudication on the merits. Thus, the Board may also consider the reopened claim on the merits. Following a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right foot disability. The reasons follow. As to evidence of a current disability, an April 2002 VA radiology report shows that the Veteran has calcaneus secundarious versus old fracture of the anterior process of the calcaneus. Thus, the first element of a service connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not document a complaint, treatment, or diagnosis of a right foot disease or injury. Upon a detailed review of the file, the Board finds the Veteran's report of an in-service right foot injury and continuing right foot symptoms/disability since service not credible. Credibility is a factual determination as to whether a witness is worthy of belief. At the April 2021 Board hearing, the Veteran stated that during his last jump in 1986, another soldier tangled up in his parachute and when he was able to get loose, he was not far from the ground. The Veteran stated that with the incline in the ground, he hit the incline with his foot and injured everything up from his foot to his lower back. He also stated that he hurt his wrist. He stated that he had a bone broken on his foot when he landed and that he was told he could not receive service connection for his foot because the scar was too little. He reported that he did not know that the bone was broken, but that he had a lot of pain. However, the service treatment records do not reflect that the Veteran was treated for a fractured right foot or any pain associated with a right foot injury. Of record are approximately 150 pages of service treatment records documenting clinical findings from various medical complaints throughout the Veteran's service, such as right knee injury, injury to his throat, a stomachache, a wrist injury, alcohol use, postnasal drip, headaches, and other medical complaints. Absent from these treatment records are complaints about the Veteran experiencing pain in his right foot or a broken right foot or that he underwent physical therapy during service, as he alleged when seen by VA in April 2002. The service treatment records show that as the Veteran experienced medical symptoms, he sought treatment for such medical symptoms, which did not include symptoms following a right foot injury. The service treatment records contain records dated throughout the Veteran's service from 1976 to 1989, and there is no documentation within these records that there are missing service treatment records to infer that the complaints of a right foot disease or injury are missing. Rather, the Board finds that the service treatment records in the file are complete. There is no documentation of a right foot disease or injury during service, while the service treatment records are replete with complaints of all types of medical symptoms throughout service, including musculoskeletal symptoms. Thus, the Board finds that the Veteran's allegation of seeking treatment for right foot symptoms following an injury during service is not credible. This finding is supported by the September 1989 Report of Medical History that the Veteran completed at service discharge, wherein he documented a positive history of swollen or painful joints, eye trouble, ear, nose, or throat trouble, hay fever, cramps in his legs, recurrent back pain, and depression or excessive worry. These positive reports are explained on the next page of the document. The swollen or painful joints was noted to refer to the painful right knee. He also listed that he had occasional back pain with no history of trauma. None of the explanations of the positive history the Veteran reported involved the right foot, but involved multiple other bodily systems, including the musculoskeletal system. This would have been an opportunity for the Veteran to report pain related to the right foot or a right foot fracture, as he had the thought process to report other musculoskeletal pain he had experienced during service, such as knee and back pain, particularly when he explained the positive history of "Swollen or painful joints." The positive histories documented in the September 1989 Report of Medical History are consistent with what is documented in the service treatment records. In other words, for positive symptoms that he claimed had occurred during service, there are corresponding service treatment records reflecting that treatment. None of the documented symptoms involved the right foot. More importantly, the Veteran affirmatively denied a history of "foot trouble" at service discharge. When asked if he ever had an injury or illness other than those already noted within the document, the Veteran checked, "No." The accompanying Report of Medical Examination shows that clinical evaluation of the Veteran's feet was normal. At the time of service discharge, it had been between three to six years since the alleged injury to his right foot (he has claimed the injury occurred in 1983, 1984, and/or 1986), and the Board finds that had the Veteran been experiencing ongoing right foot pain for years, he would have reported a positive history of "foot trouble" in the September 1989 Report of Medical History, as it is clear from that document that the Veteran provided a detailed medical history of other positive symptoms he had experienced. Thus, the service treatment records, including the September 1989 Report of Medical History, show that the Veteran did not seek treatment for a right foot disease or injury, and the Board finds the Veteran's denial of a history of foot trouble at service discharge to be affirmative evidence against an in-service disease or injury involving the right foot. This is not a situation where the record is silent for foot pain, but rather where the Veteran affirmatively denied history of "foot trouble" at the time of service discharge. Experiencing a broken foot and/or a painful foot and undergoing physical therapy would be indicative of a history of foot trouble. An August 2003 VA treatment record documents that the Veteran had reported a painful right foot for 19 years. The Board finds the denial of a history of foot trouble to be highly probative evidence that the Veteran did not experience a right foot disease or injury during his periods of active service, as statements made contemporaneously to the time period in question tend to be highly reliable. To reiterate, the positive histories reported by the Veteran in the September 1989 Report of Medical History are consistent with symptoms documented in the service treatment records, which do not show treatment for right foot pain. As to the Veteran's lay statements that he experienced a right foot injury during service, the Board finds the contemporaneous service treatment records to be more probative than the lay statements made during the appeal, which were not made until more than 10 years after the Veteran's service discharge. Furthermore, the Veteran presented to VA in Puget Sound in September 2000 to establish care at that facility. At that time, he was not reporting right foot symptoms. The Veteran has consistently reported having chronic right foot symptoms since the alleged in-service injury. It is reasonable to expect that at the September 2000 appointmentmore than 10 years following service dischargewhen the Veteran was there to establish care and was undergoing a physical examination, he would have disclosed all medical conditions for which treatment is needed and past medical conditions. The Veteran reported a past medical history of right knee pain, hematochezia, and gastritis. A review of systems showed that when the examiner addressed the musculoskeletal system, he wrote, "Has joint pain, swelling and stiffness and arthritis in his right knee. Has occasional back ache, denies gout or other myalgias." (Italics added.) Notably absent from this record is the Veteran reporting right foot pain. The examiner physically examined the Veteran's extremities, but there is no documentation of right foot pain or a right foot disability. The assessments were consistent with the Veteran's past medical history of arthritis of the right knee, chronic gastritis, and hematochezia. The examiner also entered an assessment of tobacco abuse. At this point, it had been approximately 11 years since service discharge, and between 14 and 17 years since the alleged in-service right foot injury, and the Veteran was not reporting a past history of or current right foot pain, while reporting a past medical history that included more than one musculoskeletal symptom and denying "other myalgias." This further supports the finding that the Veteran was not having ongoing right foot symptoms in the years following service discharge, as he had the thought process to report other musculoskeletal pain, which pain he had alleged started in service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (explaining that where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the conditions or symptoms did not exist). All of these facts do not support a right foot disability having its onset in service. For all the reasons described above, the Board finds as fact that the preponderance of the evidence is against a disease or injury to the right foot that occurred in service, and this element of a service-connection claim is not met. The Board also finds the preponderance of the evidence is against a nexus between the current right foot disability and service. For instance, the post-service records reflect that the Veteran did not complain of or seek treatment for a right foot disability until approximately 2002, which is more than 13 years following service discharge, and which does not lend to a finding of the onset of a right foot disability during service. The post-service treatment records show that while the Veteran sought treatment for musculoskeletal symptoms involving his right knee, he did not also report right foot musculoskeletal symptoms, which the Board finds would have been reported had he been experiencing chronic right foot symptoms since an injury during service in the 1980s, which, according to the Veteran, was a similar injury that caused his right knee disability. Consistent with this finding is right before he filed his claim for service connection for a right foot disability in April 2002, while hospitalized at a VA facility the prior month, when past injuries were documented, it included a head injury in 2002, right knee pain secondary to a 1984 or 1985 injury, and a laceration of the tongue in June 1998. The examiner specifically documented there were no fractures. This is further evidence against an in-service right foot injury, to include a fracture, as the Veteran did not report an in-service right foot injury while at the same time reported in-service right knee pain. The Veteran submitted a positive nexus opinion in December 2014 from Sneha Suthar, D.P.M., in a "Service Connected Questionnaire" that states the Veteran has a right foot condition that was as likely as not caused by or aggravated by his time in service with the military. Dr. Suthar stated that the Veteran has a fracture in the foot, which was obtained by a mechanism of action performed by the Veteran when he was in service. She also stated that the injury correlates to the patient's fracture. The Board finds that this medical opinion lacks probative value, as it is without any explanation or indication the Veteran's records were reviewed. More importantly, the Board finds that this opinion relies on the Veteran's statements of an alleged in-service injury, which, as laid out in detail above, is found not to be credible. Therefore, the opinion is based on an inaccurate factual premise and is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.") (citing Reonal). The Veteran was not afforded a VA examination in connection with the claim for service connection for a right foot disability. The Board finds that the facts of this case do not establish entitlement to a VA examination or medical opinion. VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As laid out above, the Board finds as fact that the credible evidence of record does not show an event, injury, or disease related to the right foot occurred in service. It also finds that the disability may not be associated with the Veteran's service, which reasons have been laid out above. For a VA examination to be warranted, all the criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for the claim for service connection for a right foot disability. For all the reasons laid out above, the Board finds the preponderance of the evidence is against the claim for service connection for a right foot disability. Thus, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection for a right foot disability is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Entitlement to service connection for a psychiatric disorder, to include schizophrenia, schizoaffective disorder, and depression The Board finds that remand is warranted to fully assist the Veteran with the development of his claim. After a review of the record, it appears that the Veteran is currently seeking treatment for a possible psychiatric disorder and the Veteran reported at the September 1989 Report of Medical History that he had depression or excessive worry. Under these circumstances, the Board finds that the threshold of the McLendon standard has been met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed psychiatric disorder. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. Entitlement to service connection for a lumbar spine disability The Board has reopened the claim for service connection for a lumbar spine disability, herein. At the Board hearing, the Veteran was alleging service connection for a lumbar spine disability both as having its onset in service and as being caused or aggravated by the right foot disability. As to direct service connection, there is evidence of a current disability and evidence of a complaint of in-service low back pain. This leads to the conclusion that the current disability may be related to service. Accordingly, the Board finds that the threshold of the McLendon standard has been met, and the Veteran should be afforded a VA examination to determine the likely etiology of his claimed lumbar spine disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current nature and etiology of his claimed psychiatric disorder. A copy of the below facts should be provided to the VA examiner. The examiner is asked to review the record. Any indicated evaluations, studies, and/or psychological tests deemed to be necessary by the examiner should be performed. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: The Veteran had periods of active duty from November 1976 to April 1977 and November 1979 to December 1989. The Veteran contends that he has a psychiatric disorder that had an onset in service or was otherwise related to service. In February 1988, the Veteran presented following a driving while intoxicated (DWI) incident resulting in a BAT of 1.14. The Veteran had a four-year alcohol history. The examiner noted that the Veteran was in good health, generally, and recommended him for treatment. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, p. 30. That same month, there was an ADAPCP Client Intake/Screening Record completed for alcohol abuse. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, p. 32. A September 1989 Report of Mental Status Evaluation shows that the Veteran had a positive drug screen. The examiner found that the Veteran had the mental capacity to understand and participate in the proceedings. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, p. 25. Within the September 1989 Report of Medical History, the Veteran reported a positive history of depression or excessive worry. It was documented to relate to situational stress with family members. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, pp. 51-52 (items 11 & 25). The September 1989 Report of Medical Examination shows the Veteran was found clinically normal in all areas, including psychiatric. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, pp. 53-54 (item 42). A September 2000 VA treatment record shows that the Veteran presented with a depressed mood. The examiner documented that the Veteran had no prior history of mental illness or treatment. The Veteran reported depressed mood, tearfulness, hopelessness, irritability, anger, and poor sleep. He reported experiencing a torn meniscus in May 2000 and was fired from his job the following month. He reported he had never been unemployed before. He denied any prior history of similar symptoms of depression, stating he was always able to pull himself out of a down mood. The examiner entered an assessment of major depression, single episode, status post right knee surgery and prescribed Paxil. See VBMS entry with document type "Medical Treatment Record Government Facility," receipt date 10/16/2000, p. 5. A March 2002 VA Mental Health Initial Inpatient Assessment shows that the Veteran reported he had been feeling depressed and having urges to "either suicide or homicide toward an individual whom he had lived with whom the patient feels stole money f[ro]m him." The Veteran reported that he has been living with a female friend, sleeping on her floor. He stated he had been working at a temp agency but was released (fired) on Tuesday because he refused to provide urine for a drug screen. He admitted that he has been using alcohol and crack on a daily basis, but still felt that he was treated unfairly by being terminated by the temp agency. The examiner noted that the depressive symptoms were difficult to separate from the effects of the Veteran's continuous alcohol and drug use. When addressing the past medical history, the examiner noted that the Veteran had been treated for outpatient treatment for depression while in the military. The examiner documented that the Veteran reported an overdose in 1984 (although this is not supported by the service treatment records). The Veteran denied a history of violence, assaulting others, or legal problems. The examiner documented the Veteran's substance-use history. When performing a mental status examination, the examiner noted the Veteran reported having occasional visual hallucinations of people walking past him for many years with audio hallucinations more recently. The examiner entered Axis I diagnoses of depression, not otherwise specified; "PSA, crack, alcohol;" and psychosis, likely substance related. See VBMS entry with document type "CAPRI," receipt date 11/22/2013, with "#1" in the subject field, pp. 8-10. One week later in March 2002 while still an in-patient, the examiner wrote that the Veteran had a "history of schizoaffective disorder." This is the first time in the record that such diagnosis was documented. See VBMS entry with document type "CAPRI," receipt date 11/22/2013, with "#1" in the subject field, pp. 1-5. A May 2002 psychological/psychiatric evaluation shows that the examiner documented the Veteran presented with depression, suicidal ideation, auditory and visual hallucinations, which onset occurred in May 2002. The examiner noted the Veteran's hospitalization from March 2002 to April 2002 and that there was no prior psychiatric treatment. See VBMS entry with document type, "Medical Treatment Records Furnished by SSA," receipt date 01/19/2017, pp. 35-37. A June 2002 VA treatment record shows that the Veteran reported he had just recently been diagnosed with schizoaffective disorder on March 2, 2002. The examiner wrote, "For many years, p[atien]t had a problem with substance abuse and his depression was thought to be drug induced. P[atien]t states that he has been drug free since 3/02 and the auditory hallucinations are still present, but milder." See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 11/02/2002, pp. 39-41. An August 2006 VA treatment record shows that the examiner noted that schizoaffective disorder had been diagnosed about four to five years ago after the Veteran's father had died (his father died in June 2001). The Veteran described becoming unstable after his father died. See VBMS entry with document type "CAPRI," receipt date 11/22/2013, with "#2" in the subject field, pp. 71-75. VA treatment records show ongoing treatment for schizoaffective disorder since at least 2006. A May 2013 letter from Joseph Bishop, M.D., shows that the Veteran was being treated for schizophrenia, paranoid type. See VBMS entry with document type "Medical Treatment Record Government Facility," receipt date 06/05/2013. During an April 2021 Board hearing, the Veteran testified that his psychiatric disorder began in service. He stated that he had a lot of things going on with his thoughts. He also said that at one time he was going through a divorce and he wanted to shoot his wife. He said all they did was give him ibuprofen and they did not have counseling for that when he told them what he was going through. He also said that ever since then, he has been hearing voices. See VBMS entry with document type "Hearing Transcript," receipt date 04/19/2021, pp. 3-4. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. Following a review of the evidence and an examination, the examiner is asked to answer the following questions: a) What psychiatric diagnosis(es) does the Veteran have? b) For each psychiatric diagnosis offered, is it at least as likely as not (50 percent or greater likelihood) that it was incurred during a period of active duty, which periods were from November 1976 to April 1977 and from November 1979 to December 1989, or is otherwise related to service? Please explain upon what facts, medical principles, and/or medical literature the opinion is based. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Schedule the Veteran for a VA examination for the claimed lumbar spine disability, to determine the nature, extent, and etiology of the claimed disability. A copy of this remand should be provided to the VA examiner. The examiner is asked to review the record. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: The Veteran had periods of active duty from November 1976 to April 1977 and November 1979 to December 1989. The Veteran contends that his lumbar spine disability had an onset in service or is otherwise related to service. In May 1989, the Veteran reported having back pain for three days. The examiner noted that there was no history of direct back trauma. The Veteran stated that he did not know how he hurt himself and that he hurt his back once before in January 1989. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, p. 69. In the September 1989 Report of Medical History, which was completed at service separation, the Veteran reported a positive history of having recurrent back pain. He explained that he had occasional back pain. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, pp. 51-52 (items 11 & 25). The September 1989 Report of Medical Examination shows that clinical evaluation of the spine was normal. See VBMS entry with document type "STR Medical," receipt date 12/03/1990, pp. 53-54 (item 38). At a December 1990 VA examination related to the Veteran's claim for service connection for a right knee disability, the examiner documented that physical examination of the "back" was without costovertebral angle or spine tenderness. See VBMS entry with document type "Medical Treatment Record Government Facility," receipt date 02/20/1991, p. 3. A September 2000 VA treatment record shows that the Veteran was there for "History and Physical New Patient Initial Visit." The Veteran reported a past medical history or right knee pain secondary to an injury in 1984 or 1985, hematochezia, and gastritis. When performing a review of systems and addressing the musculoskeletal system, the examiner documented that the Veteran reported joint pain, swelling and stiffness and arthritis in his right knee, but also reported "occasional back ache." The examiner performed a physical examination, although it does not appear that the examiner addressed the Veteran's spine, although there is a notation that "CVA without tenderness." See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 06/22/2003, pp. 287-289. A March 2002 VA inpatient treatment record (the Veteran was hospitalized for psychiatric symptoms) shows that the Veteran reported past injuries, which included a head injury in 2002, right knee pain secondary to an injury in 1984 or 1985 during a parachute jump, and laceration of the tongue in 1998. When performing a review of systems, the examiner documented positive chronic knee pain and left wrist pain and other symptoms, but that the remainder of the systems, including the musculoskeletal system was "Non-Contributory." An examination performed at that time of the back showed full range of motion without costovertebral angle tenderness. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 06/22/2003, pp. 250-253. During the March 2002 hospitalization, the Veteran complained of right knee pain, dental pain, as he had two teeth extracted at that time, and then began reporting muscle spasm in his back. In documenting the complaint of muscle spasm in the back, the examiner documented that this started after lifting a lunch tray several days prior. The Veteran was seen multiple times for the low back pain thereafter while an in-patient. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 06/22/2003, p. 230. An October 2007 lumbar spine x-ray shows a lucent appearance to the superior aspect of the transverse process of L3on the right. The transverse process of L4 on the right appears to be atretic or absent. Vertebra otherwise unremarkable for a mild levoscoliosis centered around L4. See VBMS entry with document type, "CAPRI," receipt date 01/27/2017, p. 313. A December 2007 lumbar spine MRI shows impressions of (1) mild degenerative changes in the lumbar spine; (2) no obvious destructive process involving the right transverse process of L3 as was suspected on prior plain film; and (3) diffusely hypointense marrow signal, which can be seen in the setting of smoking history or chronic anemia. Other marrow infiltrating processes cannot be excluded, and clinical correlation may prove helpful. See VBMS entry with document type, "CAPRI," receipt date 01/27/2017, p. 312-313. In a January 2013 letter from a VA physician, he noted that the Veteran has been treated for chronic back pain, knee arthralgia, degenerative joint disease or osteoarthritis of the lower leg/knee, lumbar spondylosis, fasciitis myofascial pain syndromes, and low back pain. See VBMS entry with document type, "Correspondence," receipt date 02/05/2013, p. 1. A September 2014 letter from the Veteran's VA physician states that the Veteran's posterior facet arthropathy is as likely as not caused or aggravated by his time in service. The physician stated that the Veteran first presented to Atlanta VAMC for low back pain in June 2007, where he related it was a consequence of his right foot injury that occurred while he was in the military and is on and off since then. See VBMS entry with document type, "Third Party Correspondence," receipt date 01/05/2015, p. 1. The Board has found that the Veteran did not have an in-service right foot injury and service connection for this disability has been denied. A February 2015 VA letter notes that the most recent test results show that the Veteran has mild degenerative joint disease noted at L2-3, L3-4, and L5-S1. See VBMS entry with document type, "Correspondence," receipt date 04/03/2015, pp. 1 2. During his April 2021 Board hearing, the Veteran testified that a week before July 4, 1986, the Veteran was tangled up with another solider in his parachute. When the solider and the Veteran got untangled, they were almost 200 yards up in the air. The Veteran said that he hit the incline, and that is where everything ran up from his foot all the way to his lower back. He also stated that he hurt his wrist. See VBMS entry with document type, "Hearing Transcript," receipt date 04/19/2021, p. 11. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. While the Board has provided some of the relevant facts above, the examiner is to review the entire record, and then answer the following questions: For each lumbar spine disability, the examiner is asked to address whether it is at least as likely as not (50 percent probability or more) that such disability had its onset during a period of active duty, which periods are from November 1976 to April 1977 and November 1979 to December 1989, or is otherwise related to service. Please explain upon what facts, medical principles, and/or medical literature the opinion is based. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.