Citation Nr: 21006570 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 06-06 305 DATE: February 4, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, to include as secondary to non-service-connected back disability, is remanded. REASONS FOR REMAND The Appellant served on active duty for training (ACDUTRA) in the U.S. Army National Guard from November 1974 to March 1975. In July 2016, the Board of Veterans’ Appeals (Board) remanded the issues of entitlement to service connection for a back disability and service connection for depression, secondary to the non-service-connected back disability, for further development. Specifically, the Board instructed the regional office (RO) to schedule the Appellant for VA examinations pertaining to his claims. As an initial matter, the psychiatric issue has been recharacterized given the nature of the Appellant’s claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of records). In the context of ACDUTRA, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or for an injury incurred or aggravated while performing inactive duty training (INACDUTRA or IDT), but not for a disease during inactive duty training, except from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident.  38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6. In the absence of evidence of a disability, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” by virtue of ACDUTRA or INACDUTRA service alone.  Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); see also 38 U.S.C. § 101(2), (24); 38 C.F.R. §§ 3.1(d), 3.6. Given that the Appellant only had ACDUTRA service, he is not considered a “Veteran” for compensation purposes unless or until it is shown that he “was disabled from a disease or injury incurred or aggravated in line of duty” during a period of ACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (noting that an individual seeking VA disability compensation based only on active duty for training must establish a service-connected disability in order to achieve veteran status). However, the Board wishes to assure the Appellant that this distinction does not in any way detract from his honorable service. Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Appellant that it is necessary for a full and fair adjudication of his claims. 1. Back disability The Board finds that a new examination and etiological opinion is warranted for the Appellant’s claim. He contends that his back disability is related to service. A medical opinion, provided by a VA examiner from a review of available records and without an in-person or telehealth examiner, was associated with the Appellant’s claim file in December 2019. She opined that the Appellant’s degenerative discs, sciatica/radiculopathy, scoliosis, and lumbar spondylosis were less likely than not related to his service. In support of her opinion, the December 2019 examiner found that, despite 1974 to 1975 STRs that reflected complaints of back pain, testing from that time showed “grossly normal” with “subjective” findings of back pain. The examiner addressed the Appellant’s September 2005 correspondence, which stated he injured his back while digging a ditch, and concluded that the letter was written some 30 years after discharge from service and did not confirm that the back pain experienced during service resulted in the Appellant’s current back condition. However, the December 2019 examiner did not consider and address the Appellant’s contention that he has continue to have back pain since service as the examiner only mentioned that the Appellant injured his back while digging a ditch. Accordingly, remand for a new examination and opinion is warranted to determine the etiology of the Appellant’s back disability. 2. Acquired psychiatric disability The Board finds that a remand is necessary for the RO to schedule the Appellant for an examination to address the nature and etiology of the Appellant’s acquired psychiatric disability. The Board’s July 2016 remand directives instructed the RO to arrange for the Appellant to undergo a VA examination. However, the RO was unsuccessful as the Appellant moved back to Trinidad, and the Appellant has indicated that he is unable to appear for an examination in Trinidad. See April 2020 SSOC. Thus, the RO determined attempts to obtain examinations where the Appellant resides in Trinidad had been futile. See id. The Board notes that efforts to schedule an examination with a telehealth examiner should be made in order to afford the Appellant an examination as he has reported that he is unable to attend in-person examinations in Trinidad. Accordingly, remand for an examination and etiological opinion is warranted. The matters are REMANDED for the following action: 1. Send the Appellant a letter requesting that he provide the names, addresses, and approximate dates of treatment for any private health care providers who may have records pertinent to his claim. The letter should request that he complete a release for all identified records.  2. Schedule the Appellant for a VA examination with an appropriate examiner to determine the nature and etiology of his back disability.  The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 pandemic and requests flexibility and understanding in affording the Appellant an opportunity for an examination.  If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination.  Following review of the electronic claims file and an examination of the Appellant, the examiner should respond to the following:  For each diagnosed condition, determine whether it is at least as likely as not (i.e., at least a 50 percent probability or more) that the Appellant’s back disability had its onset in or is otherwise related to service. The examiner must specifically discuss: • The Appellant’s lay statements concerning his back condition, including that he’s had back pain since service. • The Appellant’s STRs that reflect a February 1974 diagnosis of muscle spasm and complaints of back pain, a February 1975 separation examination report noting low back pain, the February 1975 STR noting a muscle spasm diagnosis, an August 1977 treatment record showing low back pain complaints, and the February 2009 radiology report suggesting that some of the Appellant’s lumbar spine problems were “possibly due to paravertebral muscle spasm.” The examiner is advised that the Appellant is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.  The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.  3. Schedule the Appellant for a VA examination with an appropriate examiner to determine the nature and etiology of any acquired psychiatric disability, to include depression and anxiety. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 pandemic and requests flexibility and understanding in affording the Appellant an opportunity for an examination.  If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination.  Following the review of the Appellant’s electronic claims file and examination of the Appellant, the examiner is then requested to respond to the following: (a.) Determine whether it is at least as likely as not (i.e., at least a 50 percent probability or more) that any diagnosed acquired psychiatric disability during the period on appeal (March 2005 to the present) manifested during the Appellant’s period of ACDUTRA or is otherwise related to that service. (b.) Determine whether it is at least as likely as not (i.e., at least a 50 percent probability or more) that any psychiatric disability was caused or aggravated by the Appellant’s back disability.  Note that the onset of the diagnosis is irrelevant; the assessment is whether the back disability eventually caused or aggravated the diagnosed acquired psychiatric disorder. (c.) If the examiner finds that the Appellant’s diagnosed acquired psychiatric disability was aggravated by his back disability, then he/she should specify the baseline level of disability of acquired psychiatric disability prior to aggravation due to the back disability.  Note that aggravation means any incremental increase in disability in the acquired psychiatric disability (i.e., any additional impairment of earning capacity) resulting from the back condition.  The examiner is advised that the Appellant is competent to report symptoms, treatment, and injuries, and that his report must be taken into account in formulating the requested opinion. The examiner must consider the Appellant’s September 2009 statement that his low back disability caused him to become angry and depressed. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Thereafter, readjudicate the remanded issues, and if still denied, return the matters to the Board for appellate review if otherwise in order. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.