Citation Nr: 21006906 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-12 745 DATE: February 5, 2021 REMANDED Entitlement to service connection for a lower back condition, to include degenerative disc disease, is remanded. Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder, anxiety disorder, and claustrophobia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1972 to March 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in October 2020. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. See August 2018 Board Hearing Transcript. 1. Entitlement to service connection for a lower back condition, to include degenerative disc disease, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the October 2020 remand directives. See Stegall v. West, 1 Vet. App. 368 (1998). Specifically, in October 2020, the Board instructed the AOJ to obtain an addendum opinion regarding the etiology of the Veteran’s lower back condition. The examiner was instructed to address whether such condition is the type of disability that would stem from lifting heavy beams to construct a bridge. In November 2020, the Veteran was afforded a VA examination in which the examiner opined that his lower back condition was less likely than not related to service. In support of this opinion, the examiner stated that, despite its name, medical literature establishes that degenerative disc disease is an age-related condition. The examiner also noted that the Veteran was not diagnosed with degenerative disc disease until January 2018, approximately 44 years following separation from service. See November 2020 VA Back Conditions Disability Benefits Questionnaire (DBQ). However, though a response may be implied, the examiner did not specifically address whether the Veteran’s lower back condition is the type of disability that would stem from lifting heavy beams to construct a bridge. As the Board cannot find substantial compliance with the October 2020 remand directives, a remand is necessary to allow the AOJ to obtain a new etiological opinion. See Stegall v. West, supra. Even if the Board could find substantial compliance with the September 2018 remand directives, a remand would nonetheless be necessary to allow the AOJ to conduct additional development. First, the Veteran has submitted a letter from the Social Security Administration (SSA) which shows that he was awarded disability benefits from that agency in March 1996. See March 1996 SSA Notice of Decision. However, no SSA medical records have been associated with the claims file, nor is there any indication that such records have been requested. Additionally, the evidence of record indicates that the Veteran receives private treatment from Dr. H.J.C.M. for his lower back condition. See Dr. H.J.C.M. records, received July 2014 and January 2021. However, only excerpts of such records have been associated with the claims file since July 2014. Id. As such, a remand is necessary to allow the AOJ to obtain such records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.103(c)(2)(iii), 3.159(c); Turner v. Shulkin, 29 Vet. App. 207 (2018); Ivey v. Derwinski, 2 Vet. App. 320 (1992). Second, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of his claimed lower back condition. As discussed above, the November 2020 provided a negative etiological opinion, reasoning that medical literature established that degenerative disc disease is an age-related condition. However, the examiner did not cite any medical literature to support that conclusion. See November 2020 VA Back Conditions DBQ. The Board finds this to be conclusory, and therefore inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the November 2020 examiner noted that the Veteran was not diagnosed with degenerative disc disease until January 2018. See November 2020 VA Back Conditions DBQ. However, a review of the Veteran’s private medical records reveal that the Veteran was diagnosed with lumbar degenerative disc disease as early as July 1995. See Dr. H.J.C.M. records. As such, the November 2020 opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Further, an opinion is inadequate when, as indicated here, the examiner fails to, or is unable to, consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Moreover, the Veteran’s medical records indicate that, in addition to lumbar degenerative disc disease, the Veteran also has diagnoses of osteoarthrosis and osteoporosis. See Dr. H.J.C. records; San Juan VA Medical Center (VAMC) records, received February 2019 in CAPRI. However, the November 2020 opinion only addressed degenerative disc disease. As such, the November 2020 opinion is inadequate to the extent it ignores the Veteran’s diagnoses of osteoarthrosis and osteoporosis. For these reasons, the Board finds the November 2020 opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran’s lower back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, the Board acknowledges that the Veteran has submitted a private examination, conducted by Dr. H.J.C., in which the physician opined that the Veteran’s lower back condition is related to service. See October 2018 Private Back Conditions DBQ. However, while the examiner provided a rationale to support this opinion, such rationale is illegible. As such, the Board finds the October 2018 private opinion to be effectively conclusory, and therefore inadequate for adjudication purposes. See Nieves-Rodriguez v. Peake, supra. 2. Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder, anxiety disorder, and claustrophobia, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that an additional remand is warranted to allow the AOJ to conduct additional development. First, as discussed above, a remand is warranted as the evidence indicates that potentially relevant SSA medical records have not been associated with the claims file. Additionally, the record indicates that the Veteran has received treatment from a private psychiatrist. See Dr. A.L.P. records, received July 2014. However, no such records have been associated with the claims file since July 2014. As such, a remand is necessary to allow the AOJ to obtain such records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.103(c)(2)(iii), 3.159(c); Turner v. Shulkin, supra; Ivey v. Derwinski, supra. Second, a remand is warranted to allow the AOJ to obtain an adequate opinion regarding the etiology of the Veteran’s claimed acquired psychiatric condition In October 2019, the Veteran underwent a VA examination in which the examiner provided opinions regarding service connection on both direct and secondary bases. With respect to service-connection on a direct basis, the examiner opined that the Veteran’s diagnosed psychiatric conditions were less likely than not incurred in or caused by his active duty service. In support of this opinion, the examiner noted that there is no evidence of a psychiatric condition during service or within one year of service. The examiner also noted that there is no medical evidence of the Veteran’s claimed in-service event (being locked in a gas chamber while stationed at Fort Jackson). See October 2019 VA Mental Disorders DBQ. However, the Veteran is competent to report the onset and progression of symptomatology, as well as the circumstances of their service, and an opinion based on the absence of in-service treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, as noted above, potentially pertinent medical records have not been associated with the claims file. As such, the October 2019 is inadequate as the examiner was unable to consider the Veteran’s prior medical history. See Stefl v. Nicholson, supra. Therefore, the Board finds the October 2019 opinion to be inadequate with respect to service connection on a direct basis. As such, a remand is necessary to obtain an addendum opinion regarding the etiology of the Veteran’s acquired psychiatric conditions. See Barr v. Nicholson, supra. With respect to service connection on a secondary basis, the Board notes that the October 2019 examiner opined that the Veteran’s acquired psychiatric conditions were at least as likely as not aggravated beyond their natural progression by his lower back condition. See October 2019 VA Mental Disorders DBQ. As such, the Board finds the issue to be inextricably intertwined with the Veteran’s claim of entitlement to service connection for a lower back condition, which is remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, to include SSA records and private treatment records from Dr. H.J.C.M. and Dr. A.L.P. from July 2014 to current, as well as records relating to treatment at San Juan VAMC from May 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician, other than the clinician that conducted the November 2020 examination, regarding the nature and etiology of the Veteran’s claimed lower back condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran’s detailed lay history, including employment and the onset and progression of the symptomatology. (b.) For each diagnosed back condition, to include degenerative disc disease, osteoarthrosis, and osteoporosis, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran’s active duty service. (c.) In formulating the requested opinions, the examiner is specifically instructed to consider and address: i. Whether the Veteran’s lower back condition is the type of disability that would stem from lifting heavy beams to construct a bridge. Are the Veteran’s assertions consistent with medical knowledge or implausible? Are the Veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop? ii. Whether the Veteran’s lower back condition is the type of disability that would stem from driving a truck during service, which included driving long hours, mounting and dismounting heavy tires, and loading and unloading heavy equipment. Are the Veteran’s assertions consistent with medical knowledge or implausible? Are the Veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop? • The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. • THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 4. After completing the development in Section One above, and any additional development warranted by the record, return this matter to the October 2019 examiner and obtain an addendum opinion regarding the etiology of the Veteran’s acquired psychiatric conditions. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the October 2019 examiner is unable, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran’s detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed acquired psychiatric condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran’s active duty service. (c.) In formulating the requested opinions, the examiner is asked to specifically consider and address the Veteran’s report that he has experienced claustrophobia since he was locked in a gas chamber while stationed at Fort Jackson. • The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. • THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. (Continued on the next page)   IF ANY DEVELOPMENT ACTION IS INCOMPLETE, THE APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT OR OPINION DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.