Citation Nr: 21021010 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-25 875 DATE: April 9, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1974 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs Regional Office (RO). In McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran seeks to establish service connection for an acquired psychiatric disorder. Service treatment records reflect the Veteran’s reports of nervous trouble of any sort in a June 1971 Report of Medical History. The Veteran also reported frequent trouble sleeping and depression or excessive worry in a June 1974 Report of Medical History. Post-service treatment records are negative for a diagnosed acquired psychiatric disorder; however, only VA treatment records dated through June 2015 have been associated with the record. In a September 2015 notice of disagreement, the Veteran wrote that he was receiving mental health treatment at a VA mental health center. The Board finds that the evidence of record is sufficient to trigger the VA's duty to provide the Veteran's with an adequate VA examination for his acquired psychiatric disorder. See McLendon v. Nicholson, supra. On remand, such an etiology opinion should be obtained. 2. Entitlement to service connection for a lumbar spine disorder is remanded. The Veteran seeks to establish service connection for a lumbar spine disorder. The Veteran’s service treatment records indicate that he suffered from recurrent back pain in-service. The Veteran had reported “yes” for recurrent back pain in an April 1974 Report of Medical History. He also reported back trouble in a June 1971 Report of Medical History. Post-service records are negative for a diagnosed a lumbar spine disorder; however, only VA treatment records dated through June 2015 have been associated with the record. The Board finds that the evidence of record is sufficient to trigger the VA's duty to provide the Veteran's with an adequate VA examination for his lumbar spine disorder. See McLendon v. Nicholson, supra. On remand, such an etiology opinion should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records and any mental health treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed acquired psychiatric disorder. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The need for an in-person examination is left to the discretion of the examiner. The examiner is asked to respond to the following questions: (A) Has the Veteran met the diagnostic criteria for an acquired psychiatric disorder(s) at any time since March 2015? If so, list the diagnosis or diagnoses. (B) For each diagnosed acquired psychiatric disorder(s), is it clear and unmistakable that the same preexisted service? The examiner should specifically address the Veteran's reports of reports of nervous trouble of any sort in a June 1971 Report of Medical History. (C) For any diagnosed acquired psychiatric disorder(s) that clearly and unmistakably preexisted service, is it clear and unmistakable that any progression thereof is strictly limited to the natural progression thereof? (D) For any acquired psychiatric disorder(s) that did not clearly and unmistakably preexisted service, is it at least as likely as not (50 percent probability or greater) that such acquired psychiatric disorder was incurred in service; a result of an illness, injury, or event in service; and or is otherwise related to his active service? The examiner should specifically consider that the Veteran complained of depression and excessive worrying in an April 1974 Report of Medical History. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed lumbar spine disorder. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The need for an in-person examination is left to the discretion of the examiner. The examiner is asked to respond to the following questions: (A) Has the Veteran met the diagnostic criteria for an lumbar spine disorder(s) at any time since March 2015? If so, list the diagnosis or diagnoses. (B) For each diagnosed lumbar spine disorder(s), is it clear and unmistakable that the same preexisted service? The examiner should specifically address the Veteran's reports of back trouble of any sort in a June 1971 Report of Medical History. (C) For any diagnosed lumbar spine disorder(s) that clearly and unmistakably preexisted service, is it clear and unmistakable that any progression thereof is strictly limited to the natural progression thereof? (D) For each such diagnosed lumbar spine disorder, is at least as likely as not (50 percent probability or greater) that such lumbar spine disorder was incurred in service; a result of an illness, injury, or event in service; and or is otherwise related to his active service? The examiner should specifically consider that the Veteran complained of recurrent back pain in the April 1974 Report of Medical History. (Continued on the next page)   A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.