Citation Nr: 21014760 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-57 329 DATE: March 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disorder at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1977 to January 1980. This matter comes before the Board of Veterans’ Appeals (Board) from the December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran appeared at an October 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in January 2020 and was remanded for further development. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his nightmare condition is related to his military service. The Board notes that the Veteran’s original claim was characterized as entitlement to service connection for nightmares. However, pursuant to Clemons v. Shinseki, the Board has consolidated and expanded the issue on appeal to encompass all diagnosed psychiatric disorders. See Clemons v. Shinseki , 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record.) The Veteran also testified at his Board hearing that he has nightmares about storms that he believes are related to the storm his ship went through while he was in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In January 2020, this matter was previously before the Board and was remanded to afford the Veteran the opportunity to undergo a VA examination as no VA examiner had yet opined whether or not the Veteran’s alleged disability was related to his military service. Subsequently, in January 2020, the Veteran underwent a VA PTSD examination. The January 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of recurrent distressing dreams, he did not have a diagnosis of an acquired psychiatric disorder. Further, despite regular treatment, VA and private treatment records do not contain a diagnosis of an acquired psychiatric disorder. In fact, VA PTSD treatment screens were negative, and the Veteran denied experiencing nightmares to his treatment providers. While the Veteran believes he has a current acquired psychiatric disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, entitlement to service connection for an acquired psychiatric disorder is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to service connection for a lumbar spine disability is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As noted above, this matter was previously before the Board in January 2020 and was remanded for further development. Specifically, this matter was remanded to afford the Veteran the opportunity to undergo a VA examination for his back disability. Subsequently, in January 2020, the Veteran underwent a VA back examination. The examiner stated that the Veteran is diagnosed with degenerative disc disease of the lumbar spine and retrolisthesis. Ultimately, the examiner opined that the Veteran’s back disability is less likely than not related to his military service, to include an injury that occurred while on board the Veteran’s ship. The examiner based this opinion on the fact that there is no medical record of any injury in service. Additionally, the examiner stated that degenerative disc disease is an age related condition that happens when one or more of the discs between the vertebrae of the spinal column deteriorates or breaks down. Additionally, the examiner noted that retrolisthesis occurs when the space between the vertebrae decreases and one of the risk factors in developing retrolisthesis is degenerative spinal problems. However, the Board finds the January 2020 opinion to be inadequate as the examiner relied on the absence of injury in forming the opinion given. Additionally, the examiner does not appear to consider the Veteran’s lay statements that while in service, aboard ship, he was thrown from a top bunk during a severe storm and has had lower back pain ever since. The Board notes that a VA examiner must offer a full rationale for all opinions given and should not rely solely on the absence of a record of in-service treatment in the Veteran’s service treatment records as a basis for any given opinion. Therefore, an addendum opinion must be obtained that provides an adequate opinion that considers the Veteran’s lay statements regarding his in-service injury. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s back disabilities. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disabilities related to an in-service injury, event, or disease, including the Veteran’s lay statements that while in service, aboard ship, he was thrown from a top bunk during a severe storm and has had lower back pain ever since. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely solely on the absence of evidence of in-service treatment or injury in the Veteran’s service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. (Continued on the next page)   2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.