Citation Nr: 21010464 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-22 957 DATE: February 24, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for left leg condition (claimed as leg issues) is remanded. Entitlement to service connection for right leg condition (claimed as leg issues) is remanded. Entitlement to service connection for sciatica, left lower extremity is remanded. Entitlement to service connection for sciatica, right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1975 to October 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a Board hearing. The transcript is of record. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. 2. Entitlement to service connection for left leg condition (claimed as leg issues) is remanded. 3. Entitlement to service connection for right leg condition (claimed as leg issues) is remanded. 4. Entitlement to service connection for sciatica, left lower extremity is remanded. 5. Entitlement to service connection for sciatica, right lower extremity is remanded. The Board finds that these matters on appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The evidence of record triggers the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159 (c). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), it was held that VA must provide a medical examination 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, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. The four McLendon requirements are satisfied for the Veteran’s claim. Regarding the first element, a private clinical record dated in March 2015 includes references to bilateral sciatica in the lower extremities and bilateral leg conditions. Furthermore, a September 2015 clinical record includes a reference to the Veteran having an adjustment disorder. Regarding the second and third elements, at the March 2020 Board hearing, the Veteran testified that his conditions began during service and has continued to the present. The Veteran is competent to report such evidence. In light of the foregoing evidence, there is an indication that the issues on appeal may be associated with military service. Regarding the final element, the Board finds that there is insufficient competent medical evidence in the record to make a decision on the claim. As all four McLendon elements are satisfied, a VA examination is required. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain any outstanding, pertinent VA treatment records as well as any identified private treatment records and, with the Veteran’s help as required, associate them with the electronic file to the extent possible. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 3. Schedule the Veteran for a VA examination by a suitably qualified psychiatrist or psychologist. All indicated tests and studies (to include psychological testing, if necessary) should be accomplished. After reviewing the claims file, including the Veteran’s March 2020 Board hearing transcript, service treatment records, and lay statements from the Veteran, the examiner should respond to the following questions: (a.) Whether it is at least as likely as not that the Veteran is diagnosed with or has been diagnosed with an acquired psychiatric disorder or disorders using DSM-V criteria. (b.) If a mental disorder is diagnosed under (a) above is it at least as likely as not that the diagnosed disorder or disorders is due to an injury or other event or incident of the Veteran’s period of active service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinions, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. A rationale should be provided to support any opinion rendered. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Schedule the Veteran for a VA examination of his claimed left and right leg disabilities by a suitably qualified health care profession to determine their nature and etiology. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion must include a notation that this record review took place. After the record review and examination of the Veteran, the VA examiner is asked to respond to the following inquiry: (a.) Is it at least as likely as not (a 50% or greater probability) that the Veteran’s left and/or right leg disability was either incurred in, or otherwise related to, the Veteran’s active duty service? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinions, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. A rationale should be provided to support any opinion rendered. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Schedule a VA medical examination of the Veteran by a suitably qualified health care professional(s) to determine the nature and etiology of the claimed left and right sciatic lower extremities disabilities. The claims file must be reviewed, and the review noted in the report. The following questions should be answered. (a.) Is it as likely as not (50 percent or greater probability) that any sciatic of the lower left and right extremities disorder was either incurred in, or otherwise related to, the Veteran’s active duty service? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (Continued on the next page)   In rendering the requested opinions, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. A rationale should be provided to support any opinion rendered. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.