Citation Nr: 21020773 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-07 999 DATE: April 8, 2021 REMANDED Entitlement to service connection for any acquired psychiatric disability, to include major depression, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a bilateral ankle disability, to include any disability resulting in numbness, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1979 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized the Veteran’s claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In August 2018, the Board noted the Veteran had withdrawn her request for a hearing and remanded these matters for additional development. 38 C.F.R. § 20.704(e). Initially, the Board notes that regarding all of the above delineated issues, remand is necessary. In the June 2018 Board remand, the RO was ordered to “request directly from the Social Security Administration (SSA) complete copies of any determination (including re-adjudications) on a claim for disability benefits pertaining to the Veteran from that agency as well as the records, including medical records, considered in adjudicating the claim.” The RO requested only medical records from the SSA and then certified the Veteran’s appeal to the Board after receiving a letter from the Veteran demonstrating that she is in receipt of Social Security Disability Income that began on July 20, 1984, or 3 months after her discharge from active duty. See March 2019 Request for SSA Records, March 2019 SSA Response, July 2020 SSA Letter, DD Form 214. In addition to constituting a failure in VA’s duty to assist the Veteran in developing her claim, this also represents a Stegall error in the RO’s adjudication of this appeal. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). 1. Entitlement to service connection for any acquired psychiatric disability, to include major depression, is remanded. The Veteran asserts that her current psychiatric disability, diagnosed as major depression with anxious distress, either had its onset during her active duty service or is otherwise due to her active duty service, to include as due to personal assault. See February 2012 VA Form 21-526, August 2012 Notice of Disagreement (NOD), April 2019 VA Form 21-0781, May 2019 Stressor Statement, July 2020 Veteran lay statement. The Veteran submitted to one VA examination throughout the appeal period in August 2019. The August 2019 VA examiner diagnosed the Veteran with major depression, moderate, with anxious distress and opined that it was at least as likely as not that the Veteran’s current psychiatric disability was due to the Veteran having witnessed a fellow female soldier being sexually assaulted. The Board notes that except for the circumstances outlined in 38 C.F.R. § 3.304(f)(1)-(4) (relating to in-service diagnosis of PTSD; combat; fear of hostile military or terrorist activity; POWs), a veteran’s lay statements alone cannot establish the occurrence of a stressor. Thus, all the elements of service connection except an in-service injury or event are met. In this regard, the Veteran states that while she was stationed at Fort Leonard Wood from January 1980 to December 1981, she witnessed a named fellow female soldier being sexually assaulted, tried to intervene, and was physically assaulted herself by the same assailant when she was shoved from the room where the incident was taking place. See May 2019 Stressor Statement. The Veteran, on her April 2019 VA Form 21-0781, indicated this occurred specifically in August 1979. The Board notes that this is the month and year of her entry onto active duty and does not correlate with her time at Fort Leonard Wood. See DD Form 214, Service Personnel Records (SPRs). The Veteran should be provided an opportunity to clarify if this incident occurred at Fort Leonard Wood or in basic training. Regardless, the Veteran reported the military sexual assault victim’s name, the last four digits of her social security number, and reportedly wrote a lay statement on her behalf. See May 2019 Stressor Statement, July 2020 Veteran lay statement. VA’s Office of General Counsel (OGC) has held that VA is generally obligated under 38 U.S.C. § 5103(A) to make reasonable efforts to obtain records pertaining to a service member other than the veteran who is seeking VA benefits if: (a) those records were adequately identified, would be relevant to the veteran’s claim, and would aid in substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such records to the veteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332. See VAOPGCPREC 5-2014 (August 12, 2014). As to privacy, OGC found that VA records pertaining to another individual generally may be disclosed to a claimant, such as the Veteran, only (1) pursuant to the written consent of the individual to whom the records pertain; (2) pursuant to a court order; or (3) where there is both an applicable routine use under the Privacy Act and a finding that the records would serve a useful purpose. Id. The Board notes that no development at all was undertaken by the RO regarding the Veteran’s detailed stressor that a VA examiner related to her current psychiatric disability since the Veteran supplied it in 2019 and thus, the RO has failed in its duty to assist. Accordingly, proper development and adequate attempts to verify the Veteran’s stressor must be completed on remand. The Board stresses that that the requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA's duty to assist is not bound by the JSRRC's 60-day limitation for stressor verification requests, and the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be futile.). Similarly, the duty to assist would not be bound by any such restrictions imposed by RRC. All outstanding treatment records should also be obtained. 2. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that her current low back disability had its onset during active duty or is otherwise related to her active duty service. See February 2012 VA Form 21-526, December 2015 Appellate Brief. The Veteran submitted to a VA examination in August 2019 and was diagnosed with degenerative arthritis of the thoracolumbar spine. The examiner opined that as the Veteran’s complaints of back pain in service were associated with a diagnosed urinary tract infection, that it was less likely than not related to her current degenerative arthritis. However, the Board notes that the VA examiner failed to discuss the fact that the Veteran’s enlistment report of medical examination was silent as to any back disorder and that she was diagnosed with scoliosis verified by x-ray in January 1984. See Service Treatment Records (STRs). Congenital or developmental defects are generally not considered diseases or injuries in the meaning of applicable legislation for disability purposes and thus do not constitute disabilities for VA compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9. However, the mere fact that a disorder is congenital in origin does not preclude service connection. See VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 1990). Only congenital defects, as opposed to congenital diseases are excluded from consideration for service connection, as congenital defects are not considered diseases or injuries under VA law. O'Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014); VAOPGCPREC 82-90 (July 1990). Congenital defects are only subject to service connection if there is evidence of additional disability due to the aggravation of the congenital defect during service by a superimposed disease or injury. See VAOPGCPREC 82-90 (July 1990); Monroe v. Brown, 4 Vet. App. 513 (1993); Carpenter v. Brown, 8 Vet. App. 240 (1995). By contrast, conditions subject to change and capable of improvement or deterioration are considered congenital diseases and are eligible for service connection in certain circumstances. VAOPGCPREC 67-90 (July 18, 1990); Quirin v. Shinseki, 22 Vet. App. 390 (2009). The August 2019 VA examiner failed to address the Veteran’s in-service diagnosis of scoliosis at all. Thus, the August 2019 VA examination and attendant medical opinion are inadequate and of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). As the Veteran was diagnosed in service with scoliosis, reported that her back pain began in service and continued to the present, and now has degenerative arthritis of the spine, the presumptions of 38 C.F.R. § 3.307 are also implied. See December 2015 Appellate Brief. However, the Board notes that the presumptions regarding arthritis may be rebutted by “affirmative evidence to the contrary.” 38 C.F.R. § 3.307. In this regard, the Board notes that in the August 2012 NOD, the Veteran reported that she was in an accident in June 1984, after her release from active duty. The July 2020 SSA letter supplied by the Veteran indicates that she became too disabled to work in July 1984. The August 2019 VA examiner noted an 18-centimeter scar on the Veteran’s spine as well as post-surgical changes. VA treatment records indicate the Veteran has reported undergoing spinal surgery. See February 2019 VA treatment records. Thus, a medical opinion addressing these facts must also be obtained. Accordingly, and as noted above, all SSA records must be obtained and a new VA examination must be completed on remand. 3. Entitlement to service connection for a left arm disability is remanded. The Veteran asserts that her left arm disabilities, to include a circulatory disorder, left shoulder strain, and left medial epicondylitis, had their onset during her active duty service. See February 2012 VA Form 21-526, August 2012 NOD. Specifically, the Veteran reports that she was placed on light duty during basic training. Id. In this regard, the Board notes that the Veteran’s STRs do not reflect light duty and, additionally, that a complete set of the Veteran’s Service Personnel Records (SPRs) have not been obtained. Additionally, the Veteran’s DD Form 214 indicates that the Veteran had 2 months and 17 days of inactive service prior to her active duty period from August 1979 to April 1984. These records have not been obtained. Thus, remand is necessary in this regard. An addendum opinion is also needed to address in-service complaints of left arm numbness and any newly received relevant service records. See August 2019 VA examination reports. 4. Entitlement to service connection for a bilateral ankle disability, to include any disability resulting in numbness, is remanded. The Veteran asserts that her current bilateral ankle disabilities are a continuation of the pain and swelling she experienced during her active duty service. See February 2012 VA Form 21-526, October 1979 and May 1981 STRs. In this regard, the Veteran was examined in August 2019 and diagnosed with a left ankle strain and no diagnosis was rendered regarding the Veteran’s right ankle. Critically, the August 2019 VA examiner did not comment on the Veteran’s right ankle pain and any functional impairment caused by such pain as directed by the June 2018 Board Remand. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain resulting in functional impairment constitutes a disability as contemplated by 38 U.S.C. § 1110, even in the absence of a presently diagnosed condition); See also Stegall, supra. Accordingly, the examination is inadequate, and a new examination and opinion are required on remand. Additionally, the Veteran was diagnosed with moderate overall arthropathy at the left ankle and spurring/ossific protuberance anterior to the Achilles tendon insertion, and these diagnoses should be addressed. See May 2020 VA treatment records. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain complete copies of the Veteran’s service treatment and service personnel records. 2. Obtain all outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 4. With any necessary assistance from the Veteran, to include asking her to provide additional information concerning her in-service stressor, if needed, attempt to verify the Veteran's report that she personally witnessed a military sexual assault take place and was physically assaulted during the same. The Board emphasizes that the Veteran’s lack of response is not permission to deny the claim without further development and would continue constitute a violation of the VA’s duty to assist. (a.) The RO should undertake all necessary development, including requesting that the Veteran supply “buddy statements” from the identified MST victim (see April 2019 VA Form 21-0781, May 2019 Stressor Statement, July 2020 Veteran lay statement). The RO should also make attempts to obtain any records that would substantiate the Veteran’s asserted stressor that occurred during her time at Fort Leonard Wood, including but not limited to requesting the service records of the identified MST victim and any associated police records. (b.) Any attempt to verify the alleged stressors must be completed in 60-day increments to cover the time period identified by the Veteran, including her entire period of service at Fort Leonard Wood from January 1980 until August 1982. Gagne, supra. If additional information is needed from the Veteran, please request the same. (c.) Please provide all findings in a detailed memorandum. If there is insufficient information to verify the alleged stressors, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service stressors. 5. Request, directly from the SSA, complete copies of any determination (including re-adjudications) on a claim for disability benefits pertaining to the Veteran from that agency as well as the records, including any medical records, considered in adjudicating the claim. Associate any secured records with the electronic claims file. Please note the Veteran’s July 2020 letter from the SSA in your review of the record. 6. Then, only after completing numbers 1 through 4, schedule the Veteran for an examination of her thoracolumbar spine with an examiner other than the August 2019 VA examiner, preferably an orthopedist if available, to determine the nature and etiology of the Veteran’s back disability. The entire claims file, including a copy of this remand, should be made available to the examiner. After a review of the claims file, the examiner is asked to address the following: (a.) Identify all thoracolumbar spine disabilities present, to include scoliosis and degenerative joint disease of the spine. If scoliosis and degenerative arthritis of the spine cannot be confirmed, please explain why this is so and discuss the in-service complaints of back pain, the January 1984 diagnosis of scoliosis, and the August 2019 diagnosis of degenerative arthritis of the spine. (b.) If a diagnosis of scoliosis is warranted, please determine whether such diagnosis is a congenital defect or disease. (For VA purposes, a defect differs from a disease in that the former is more or less stationary in nature while the latter is capable of improving or deteriorating.) 1. If it is determined that the Veteran’s scoliosis is a congenital defect, then is it at least as likely as not (a probability of 50 percent or greater) that there was a superimposed disease or injury in service that resulted in additional disability of the thoracolumbar spine? If so, please describe the resultant disability. Please address the Veteran’s in-service complaints of back pain. 2. If scoliosis is identified as a congenital disease, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disease was aggravated (worsened beyond natural progression) by service, to include as a result the cumulative impact of 4 years of active duty in the U.S. Army. (c.) For any other currently diagnosed thoracolumbar spine disability, including degenerative arthritis, is it at least as likely as not (a 50 percent probability or greater) that: 1. such disability had its onset in or is related to the Veteran’s active service, including the documented complaints of low back pain or the cumulative impact of 4 years in the Army; or 2. any documented arthritis manifested within a year of service discharge? In providing the above opinions, the examiner should address the lay statements made by the Veteran, including her statement that back pain began in service and continued to the present in the December 2015 Appellate Brief, and determine whether a nexus to service is “medically plausible” based on the same. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 7. Then obtain an addendum opinion addressing the etiology of her left upper extremity disability, to include her left shoulder strain and left medial epicondylitis. The entire claims file should be made available to the examiner. For each left upper extremity disorder diagnosed, to include left shoulder strain and left medial epicondylitis, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability was incurred in, or is otherwise related to the Veteran's service, including the June 1980 complaints of numbness in the neck and shoulder, the February 1983 muscle strain, and any other evidence of a light duty profile based on any newly received service records. 8. Then, only after completing numbers 1 through 4, schedule the Veteran for a VA examination to determine the nature and etiology of her bilateral ankle disabilities, to include any strains or arthropathies. If no such disability is identified, the examiner must indicate whether the Veteran’s reported pain causes any functional impairment. The entire claims file should be made available to the examiner. All findings should be reported in detail. (a.) For each ankle disorder diagnosed, or functional impairment identified, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that: 1. such disability was incurred in, or is otherwise related to the Veteran’s service, including the October 1979 complaint of ankle pain and swelling and the May 1981 ankle injury therein? 2. any documented arthritis manifested within a year of service discharge? S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.