Citation Nr: 21077584 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-33 905 DATE: December 30, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder due to military sexual trauma, to include posttraumatic stress disorder (PTSD), unspecified depressive disorder, unspecified trauma disorder, generalized anxiety disorder, and panic disorder, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for chronic pain related to Chiari malformation is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1990 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2017, June 2017, and July 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran asserts that she has a current acquired psychiatric disorder that is related to an in-service sexual assault. Multiple acquired psychiatric diagnoses are of record. In February 2017, a VA examiner concluded that the Veteran did not meet the criteria for a diagnosis of PTSD and instead diagnosed her with unspecified depressive disorder and unspecified trauma disorder. The examiner opined that the Veteran's current psychiatric symptoms were at least as likely as not aggravated by her reported in-service sexual assault but noted that there was evidence that other factors also played a role. Specifically, the examiner cited post-military physical assaults and alcohol use disorder that was currently in remission. Unfortunately, the examiner did not indicate which of the identified factors was the most likely cause of the Veteran's identified acquired psychiatric disorders. Notably, VA treatment records document the Veteran's report that she began drinking at age 17, which would predate her period of service. See, e.g., January 8, 2013 VA SATP Counseling Note. Additionally, prior to the February 2017 VA examination, a PTSD diagnosis was not included among the acquired psychiatric diagnoses of record. However, VA treatment records from 2019 include a positive PTSD screen and a list of mental health diagnoses that includes PTSD. A PTSD diagnosis would affect the manner in which the Veteran's reported stressor may be corroborated. In light of the foregoing, an additional VA examination that clarifies the Veteran's current psychiatric diagnoses and expands upon the opinion provided by the February 2017 VA examiner is needed on remand. As the claim is being remanded for another reason, the Veteran should also be given another opportunity to provide evidence from sources other than her service records or evidence of behavior changes that could constitute credible supporting evidence of her described in-service stressor. 2. Entitlement to service connection for a low back disability The Veteran asserts that her current low back disability began during her active-duty service and has continued since that time. The Veteran's service treatment records document her October 1990 report that she injured her back on a trampoline during pre-service diving training earlier that year but that her symptoms were now more pronounced. See October 12, 1990 and October 30, 1990 Service Treatment Records. The Veteran's spine was noted to be normal on her entrance examination. During her Board hearing, the Veteran testified that her in-service back symptoms persisted after service and that she treated them with over-the-counter medication, heating pads, and hot showers. She explained that her back symptoms were overshadowed to some extent by her other post-service medical issues. A September 2016 VA examiner diagnosed the Veteran with lumbosacral strain but opined that the disability was less likely than not incurred in or caused by her active-duty service. In support of that conclusion, the examiner cited lack of treatment from the time of the 1990 lower back strain until May 2016. The examiner also opined that the back disability clearly and unmistakably preexisted the Veteran's active-duty service, but the examiner did not provide a rationale for that conclusion. In March 2020, a VA examiner again opined that the Veteran's low back disability was less likely than not incurred in or caused by her active-duty service, citing normal x-ray studies conducted in 1990 and 2016 and medical records dating since 1999 that were silent for low back treatment or symptoms. As neither VA examiner considered the Veteran's lay assertion that her back symptoms persisted after service and as the September 2016 VA examiner concluded that the Veteran's back condition preexisted service but did not explain why or address whether the back condition was clearly and unmistakably not aggravated by service, an additional VA examination is needed on remand. 3. Entitlement to service connection for chronic pain related to Chiari malformation is remanded. The Veteran has asserted that physical trauma she experienced during service caused her currently diagnosed Chiari malformation. Although the physical trauma the Veteran has described is not documented in her service treatment records, the records do include a report of recurrent dizziness. See February 11, 1994 Service Treatment Record. The Board finds that the low threshold required for obtaining a medical opinion addressing the etiology of the Veteran's diagnosed Chiari malformation has been met, and such an opinion must be obtained on remand. 4. Entitlement to a TDIU is remanded. Development of the Veteran's service connection claims could significantly impact the Veteran's claim for a TDIU. Thus, adjudication of entitlement to a TDIU would be premature, and that claim must also be remanded as inextricably intertwined with the service connection claims. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. Send the Veteran notice regarding the information necessary to establish service connection for PTSD based on personal assault. 3. Then, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorders, including, but not limited to, PTSD, unspecified depressive disorder, unspecified trauma disorder, generalized anxiety disorder, and panic disorder. After reviewing the claims file, examining the Veteran, and conducting any indicated tests, the examiner is asked to address the following: (a) If the Veteran is not diagnosed with PTSD, please explain how the diagnostic criteria are not met and specifically discuss the propriety of prior PTSD diagnoses of record. (b) Please address whether the evidence of record, including the Veteran's lay statements, statements made by others on her behalf, and her service records corroborate her assertion that a personal assault occurred in service. (c) For each diagnosed acquired psychiatric disorder, please state whether it is at least as likely as not (50 percent probability or greater) that the disorder was incurred in service or is otherwise related to service, to include to the Veteran's described in-service sexual trauma. Please explain why or why not. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of her low back disability. After reviewing the claims file, examining the Veteran, and conducting any indicated tests, the examiner is asked to address the following: (a) Did a low back disability clearly and unmistakably exist prior to the Veteran's active service? Please explain why or why not, specifically considering and discussing the October 1990 service treatment records discussing a pre-service trampoline injury. (b) If you determine that a low back disability did clearly and unmistakably exist prior to service, is there clear and unmistakable evidence that the disability was NOT aggravated by service? Please explain why or why not, specifically considering and discussing the Veteran's October 1990 report that her symptoms had become more pronounced and her report of recurrent back pain during her separation examination. (c) For any low back disability that (1) did not exist prior to service or (2) did exist prior to service but was not clearly and unmistakably NOT aggravated by service, is it at least as likely as not (50 percent probability or greater) that such disability was incurred in service or is otherwise related to service? Please explain why or why not, specifically considering and discussing the Veteran's reports that, while other medical issues eclipsed her symptoms, she continued to experience low back spasms, treated with over-the-counter medication, heating pads, and hot showers, over the years following her separation from service. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of her chronic pain related to a Chiari malformation. After reviewing the claims file, examining the Veteran, and conducting any indicated tests, the examiner is asked to address the following: (a) Is the Veteran's Chiari malformation congenital or acquired? Please explain the reasoning for your conclusion. (b) If the Veteran's Chiari malformation is congenital, is it a disease or a defect? Please explain the reasoning for your conclusion. (c) If the Veteran's Chiari malformation is a congenital disease, did it clearly and unmistakably exist prior to the Veteran's active service? If it did, was it clearly and unmistakably NOT aggravated by service? Please explain why or why not. (d) If the Veteran's Chiari malformation is a congenital disease but did not clearly and unmistakably exist prior to service, is it at least as likely as not (50 percent probability or greater) that it first manifested in service? Please explain why or why not, specifically considering and discussing the Veteran's report of recurrent dizziness in February 1994. (e) If the Veteran's Chiari malformation is a congenital defect, is it at least as likely as not (50 percent probability or greater) that the condition was subject to a superimposed disease or injury? If yes, please identify the superimposed disease or injury, as well as the resultant disability due to such superimposed disease or injury. (f) If the Veteran's Chiari malformation is acquired, is it at least as likely as not that it was incurred in service or is otherwise related to service? Please explain why or why not, specifically considering and discussing the Veteran's report of recurrent dizziness in February 1994. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.