Citation Nr: 21005406 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-21 074 DATE: February 1, 2021 REMANDED Entitlement to service connection for a back disability for substitution and/or accrued benefits purposes for substitution and/or accrued benefits purposes is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include compensation under 38 U.S.C. § 1151 for substitution and/or accrued benefits purposes is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1998 to August 2000. The Veteran died in November 2015. The Appellant is the Veteran’s surviving spouse and was properly substituted as the appellant in this case. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appellant testified before the undersigned in a February 2019 Board hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for a back disability is remanded. The Veteran contended that his back disability was etiologically related to service. In the alternative the Veteran contended that his back disability was related to his service-connected foot disability. In March 2020, the Board remanded this matter to obtain a medical opinion. Specifically, the Board directed VA to obtain a medical opinion as to whether the Veteran’s foot disability caused or aggravated the Veteran’s back disability. The Board directed a VA examiner to specifically address an April 2014 VA examination report that stated the Veteran’s right foot disability caused an antalgic gait, a May 2009 VA treatment note which indicated his foot disability hurt his back, and the Veteran’s February 2015 testimony that he feet affected his back. In June 2020, the VA obtained an addendum medical opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner reasoned that service treatment records noted that the Veteran had low back pain in February 1999 and had a motor vehicle accident in August 1999. The examiner noted that separation examination noted back problems with no sequalae. The examiner stated that this suggests a resolution of an acute situation. The examiner further noted that there is no documentation of low back pain until 2009, after service. The examiner found that as the events in service appeared to be acute and had resolved by separation, and as there was no evidence of care for nine years, it is less likely than not the Veteran’s low back strain was due to or incurred in-service, which was acute self-limited. The examiner further found that there is no mechanism by which the Veteran’s shoulder conditions could cause or aggravate the Veteran’s low back strain, as they are anatomically separate and there is no evidence of aggravation beyond the natural course for the lumbosacral strain. The examiner found the same applied for hammer toes. The examiner found they are not physically or anatomically connected and there is no mechanism by which they would cause or aggravate the Veteran’s back conditions. The examiner noted that the condition of one joint does not cause a condition of another joint. Finally, the examiner noted that there was an incidental congenital abnormality identified, transitional L/S joint. The examiner stated this was considered insignificant and the rationale as to its impact is the same as noted above. The examiner explained there is no evidence to suggest chronic aggravation of the mild preexisting congenital anomaly. The examiner noted it is not considered a disease and is a common anomaly. The Board finds that a remand is required. The June 2020 examiner failed to address the Veteran’s statements that his feet disability caused his back to hurt and the April 2014 VA examiner who noted the Veteran’s right foot caused an antalgic gait as directed by the March 2020 Board remand. Therefore, upon remand VA must obtain an addendum medical opinion to determine whether the Veteran’s bilateral hammer toes caused or aggravated the Veteran’s back disability. 2. Entitlement to service connection acquired psychiatric disorder The Veteran contended that his acquired psychiatric disability was etiologically related to his service. In March 2020, the Board remanded this matter in order to obtain an etiology opinion concerning the Veteran’s diagnosed major depressive disorder and anxiety disorder. In June 2020, the VA obtain an addendum medical opinion relating to the Veteran’s diagnosed anxiety disorder. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran endorsed anxiety prior to his enlistment. The examiner noted that the Veteran reported mental health issues prior to his enlistment. Notably, the Veteran reported that mental health issues after his mother’s suicide when he was 12 and he attempted suicide at age 16 and was diagnosed with posttraumatic stress disorder and major depressive disorder. The examiner noted that the Veteran endorsed frequent trouble sleep upon his entrance examination. The examiner further stated that the Veteran had stated he was always nervous and anxious. The examiner explained that anxiety disorder frequently co-occur with major depressive disorders. Anxiety disorder symptoms tend to be chronic and wax and wane across the lifespan, fluctuating between syndromal and subsyndromal forms of the disorder. The findings reveal that the Veteran reported feeling anxious and nervous all of his life. Thus, given the Veteran endorsed feeling nervous and anxious always, frequent trouble sleeping, irritability and being keyed up prior to enlistment, the findings suggest that anxiety was present prior to the Veteran’s military service. In June 2020 VA obtained an addendum medical opinion related to the Veteran’s diagnosed major depressive disorder. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that given the Veteran’s reports that he had a preexisting mental health issue for which he was hospitalize prior to enlisting, it is less likely than not the major depressive disorder was caused or incurred during his military service to include his deployment to Bosnia or his son’s death in 2000. VA regulations provide that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Before the presumption of soundness can be applied, there must be evidence that a disability or injury that was not noted on entrance into service manifested or was incurred in service. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). Where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran’s entrance examination report, the presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. Id. The Veteran’s reported history of frequent trouble sleep in his May 1997 entrance examination is not considered a noted psychiatric disorder. As the June 2020 VA examiner’s negative opinion relied on the fact that the Veteran’s psychiatric disorders preexisted service, a remand is required to determine whether there is clear and unmistakable evidence the Veteran’s depression and/or anxiety preexisted service and was not aggravated by service. 3. Entitlement to DIC benefits to include service connection for the cause of the Veteran’s death and pursuant to 38 U.S.C. § 1318 The Appellant contends that the Veteran’s service-connected disabilities and his back disability made the Veteran’s body susceptible to the causes of the Veteran’s death. As the claim for entitlement service connection for the Veteran’s back disability is herein remanded, and the claim for service connection for cause of death is inextricably interwind with the back-disability claim. Therefore, must remanded as well. Further, the Appellant’s claim for DIC under 38 U.S.C. § 1318 must also be remanded for similar reasons. See 38 U.S.C. § 1318; see also Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion by an appropriate clinician to determine the nature and etiology of an acquired psychiatric disorder. The examiner must provide the following opinions: (a.) Did an acquired psychiatric disorder clearly and unmistakably (obvious, manifest, undebatable) exist prior to the Veteran’s period of active service. In making this determination, consider the Veteran’s medical history, accepted medical principles, evidence regarding the basic character, origin and development of the disorder, and lay and medical evidence concerning the inception, development and manifestations of the disorder. If such any acquired psychiatric disorder clearly and unmistakably existed prior to service identify that disorder. (b.) If an acquired psychiatric disorder clearly and unmistakably existed prior to service, is there clear and unmistakable evidence that it was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? (c.) A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. Obtain an addendum medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s back disability. The examiner must provide the following opinion: (a.) Whether the Veteran’s back disability was at least as likely as not (1) proximately due to service-connected hammer toes, or (2) aggravated beyond its natural progression by service-connected hammer toes. i. The examiner must address the April 2014 VA examination that noted the Veteran’s right foot disability caused an antalgic gait. ii. The Veteran’s February 2015 testimony that his feet affected his back. iii. A May 2009 VA treatment note that indicated his service-connected foot disability caused his back to hurt. (b.) For each opinion the examiner must provide a complete medical rationale. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.