Citation Nr: 21021795 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-45 693 DATE: April 14, 2021 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a back disorder and/or service-connected tinnitus, is remanded. Entitlement to service connection for headaches, to include as secondary to an acquired psychiatric disorder and/or service-connected tinnitus, is remanded. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder and/or back disorder, is remanded. REASONS FOR REMAND The Veteran served in the Army Reserve, to include a period of initial active duty for training (ACDUTRA) from October 1989 to February 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office. In January 2021, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, he submitted additional evidence and waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the July 2017 statement of the case. 38 C.F.R. § 20.1035(c). With regard to the characterization of the Veteran’s claims for service connection for a back disorder, an acquired psychiatric disorder, and headaches, the Board observes that such claims were initially denied in an October 2013 rating decision. However, in October 2014, the Veteran submitted statements from his spouse, P.P., and fellow servicemember, D.S., describing in-service events that he alleges resulted in his acquired psychiatric disorder, and relevant symptomatology during and since service. Consequently, as such new and material evidence was received within one year of the issuance of the October 2013 rating decision, the Board will review such claims on a de novo basis. 38 C.F.R. § 3.156(b). All Claims As an initial matter, the Board observes that the Veteran reported receiving VA treatment through the Orlando, Florida, VA Healthcare System, to include the Viera VA Outpatient Clinic, beginning in 1997; however, the VA records on file only begin in July 2013. Thus, a remand is necessary in order to obtain any outstanding VA treatment records from such facilities. The Board also notes that, as reflected in the characterization of the Veteran’s claims for service connection for an acquired psychiatric disorder, headaches, and hypertension, he has advanced multiple theories of entitlement, to include alleging that such disorders are secondary to disorders that have not yet been service-connected. Thus, following the completion of the development ordered herein, the AOJ should review the record and conducted any additionally indicated development, to include obtaining any opinions deemed necessary for the adjudication of such claims. Finally, the Board acknowledges that, in a February 2012 letter, the Veteran’s private physician, Dr. S.H., opined that, after reviewing the Veteran’s medical records, his posttraumatic stress disorder (PTSD), lower back pain, and headaches were very likely to have occurred while serving in the military. However, as she did not offer a rationale for her opinion, the Board cannot rely upon such to award service connection. 1. Entitlement to service connection for a back disorder. The Veteran contends that his currently diagnosed back disorder, identified as degenerative disc disease at a July 2013 VA examination, is directly related to an injury he sustained while in service. Specifically, he reports that, in 1989, he slipped on ice and fell onto his left side. He further reports that, following the incident, he sought treatment and was placed on light duty. The Veteran notes experiencing continuous back pain since his in-service injury, and states that he was unable to perform the physically demanding work in his post-service career (detail shop/dealerships). In this regard, a November 1989 service treatment record (STR) reveals the Veteran’s complaint of back pain (sharp/continuous) with all movement since he entered basic training. An assessment of thoracic back pain was noted, and he was placed on a one-week profile consisting of no lifting, bending, or running. The following day, an assessment of back pain, subjective complaint, was noted. Further, in the aforementioned October 2014 letters, P.P. indicated that she asked the Veteran to see a doctor for his back pain as he had told her his back continued to hurt since he slipped and fell on ice. She further indicated that the Veteran saw private doctors for his back pain prior to receiving VA treatment. Additionally, during the January 2021 Board hearing, P.P. reported that she met the Veteran in 1983, recalled when he injured his back during basic training as he told her that he fell and injured himself, and that since such in-service injury, she witnessed his continuous complaints and resulting limitations associated with his back pain. Moreover, D.S. stated that, following training at Fort Sill in 1989, the Veteran told him his back had been hurting since he fell on ice. He further reported that he noticed the Veteran was in pain, the Veteran was given Motrin and placed on light duty for the weekend with a back brace, and that the Veteran continued to complain about back pain when they were at Fort Stewart, Fort Bragg, and Fort Benning. Furthermore, in a January 2021 letter, Dr. B.C. indicated that, while treatment records were unavailable, their office started treating the Veteran in 1993 for back pain, and his history included a fall on ice during his military service. In this regard, he noted that the Veteran attributed his condition at such time to the fall, and his examination and radiographic evaluations were consistent with that history. While the July 2013 VA examiner determined that the Veteran’s back disorder was less likely than not caused by or a result of his service, she relied primarily on the lack of documented back treatment for many years after service. Here, the examiner failed to consider the Veteran’s, P.P.’s and D.S.’s reports that the Veteran experienced a continuity of back symptomatology since his in-service injury, or Dr. B.C.’s statement that the Veteran sought treatment for back complaints within three years of his separation from service, thereby rendering the opinion legally insufficient. See generally Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, the Board finds that a remand is warranted to obtain an addendum opinion that addresses such matters. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a back disorder and/or service-connected tinnitus. The Veteran contends that he has an acquired psychiatric disorder that is related to his military service or, in the alternative, is caused or aggravated by his back disorder and/or service-connected tinnitus. In this regard, he underwent a VA examination in August 2014 to determine the nature and etiology of his claimed acquired psychiatric disorder. However, the Board finds such examination is inadequate for adjudication purposes, and a remand is necessary to obtain an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, at such time, the examiner determined that the Veteran met the diagnostic criteria for PTSD due to events incurred during military service; however, as she linked such disorder to unverified stressors, such determination is afforded no probative weight. However, she did not address whether the Veteran’s PTSD is related to an in-service personal assault as described as harassment and threats from his drill sergeants. Additionally, while the examiner found that the Veteran met the diagnostic criteria for major depressive disorder, she did not provide an opinion as to whether such was directly related to his military service, and only provided a conclusory statement that such disorder was less likely than not proximately due to or aggravated by his service-connected tinnitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, a remand is necessary in order to obtain an addendum opinion addressing such matters. Additionally, while on remand, the Veteran should be provided notice that evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault. 38 C.F.R. § 3.304(f)(5); Patton v. West, 12 Vet. App. 272, 277 (1999). The Board further notes that, while the examiner found that the Veteran’s depression was secondary to his chronic pain from his back, he is not yet service-connected for a back disorder. Thus, his claim for service connection for an acquired psychiatric is inextricably intertwined with his claim for service connection for a back disorder remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for headaches, to include as secondary to an acquired psychiatric disorder and/or service-connected tinnitus. The Veteran contends that his currently diagnosed headaches began during service or, in the alternative, are caused or aggravated by his acquired psychiatric disorder and/or service-connected tinnitus. In regard to the former theory, he reports that, while in service, he went to sick call as his head was hurting very badly, and he was prescribed Motrin, and, following discharge, he received treatment from a private doctor who diagnosed him with migraines, which have continued to the present time. As an initial matter, the Board notes that VA/private treatment records dated since 2006 reveal assessments of headaches/migraines. Additionally, a May 1994 STR, which appears to have been completed during a period of Reserve training, reflects the Veteran’s complaint that his head was hurting. Further, in the aforementioned October 2014 letters, P.P. indicated that the Veteran saw private doctors for his chronic headaches prior to receiving VA treatment. Moreover, D.S. stated that, at Fort Stewart, the Veteran went to sick call for his headache and was told to seek medical attention after they left training, and he continued to complain about his headaches when they were at Fort Bragg. Consequently, in light of the Veteran’s current diagnosis of headaches/migraines, his in-service complaint of his head hurting, and the Veteran’s, P.P.’s, and D.S.’s reports of the Veteran’s relevant symptomatology during and since service, the Board finds that a remand is necessary in order to afford him a VA examination so as to determine the nature and etiology of such disorder. McLendon v, Nicholson, 20 Vet. App. 79 (2006). 4. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder and/or back disorder. As the Veteran has claimed, in part, that his hypertension is caused or aggravated by his acquired psychiatric disorder and/or back disorder, the instant claim is inextricably intertwined with the claims remanded herein. See Tyrues, supra; Harris, supra. The matters are REMANDED for the following action: 1. Provide the Veteran with notice that evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault, to include records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy, and that evidence of behavior changes following the claimed assault, to include a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes, is one type of relevant evidence that may be found in the mentioned sources. 2. Obtain the Veteran’s VA treatment records dated from 1997 to the present from the Orlando VA Healthcare System, to include the Viera VA Outpatient Clinic. 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). 3. Forward the record to an appropriate clinician in order to obtain an addendum opinion addressing the etiology of the Veteran’s back disorder. Following a review of the record, the examiner should offer an opinion as to whether it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed degenerative disc disease of the lumbar spine is related to his in-service injury when he slipped and fell on ice, to include his November 1989 complaints of back pain? In offering such opinion, the examiner must consider and discuss the Veteran’s report of an in-service slip and fall; the November 1989 STRs reflecting his complaint of back pain; his, P.P.’s, and D.S.’ statements indicating that he experienced back pain since his initial in-service injury; Dr. B.C.’s statement that the Veteran was treated for back pain beginning in 1993 (i.e., within three years of separation from service); and Dr. S.H.’s February 2012 opinion that the Veteran’s lower back pain were very likely to have occurred while serving in the military. A rationale for any opinion offered should be provided. 4. Forward the record to an appropriate clinician in order to offer an addendum opinion addressing the etiology of the Veteran’s acquired psychiatric disorder. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a current diagnosis of PTSD related to a personal assault, described as harassment and threats from his drill sergeants. In this regard, the examiner should identify any markers, to include behavioral changes, that support a finding of a personal assault. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed major depressive disorder is related to his military service? (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed major depressive disorder is caused or aggravated by his service-connected tinnitus? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, if quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 5. Schedule the Veteran for an appropriate VA examination determine the nature and etiology of his headaches. The record, to include a copy of this remand, should be reviewed by the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all currently diagnosed headache disorders. (B) For each diagnosed headache disorder, it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to his military service, to include his May 1994 complaint that his head hurting during a period of Reserve training? (C) For each diagnosed headache disorder, it is at least as likely as not (i.e., a 50 percent or greater probability) that such caused or aggravated by the Veteran’s service-connected tinnitus? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, if quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering such opinions, the examiner must consider and discuss the May 1994 STR reflecting the Veteran’s complaint of his head hurting; his, P.P.’s, and D.S.’s statements indicating that he experienced headaches during and since service; and Dr. S.H.’s February 2012 opinion that the Veteran’s headaches were very likely to have occurred while serving in the military. A rationale for any opinion offered should be provided. 6. Following the completion of the development ordered herein, the AOJ should review the record and conducted any additionally indicated development, to include obtaining any opinions deemed necessary for the adjudication of the Veteran’s claims for service connection for an acquired psychiatric disorder as secondary to a back disorder; headaches as secondary to an acquired psychiatric disorder; and hypertension as secondary to an acquired psychiatric disorder and/or back disorder. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.