Citation Nr: 21028795 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 20-22 199 DATE: May 12, 2021 REMANDED Entitlement to a cervical spine disability, to include ankylosing spondylitis, is remanded. Entitlement to service connection for a right hip disability, status post total right hip arthroplasty, is remanded. Entitlement to service connection for a thoracic spine disability, to include ankylosing spondylitis, is remanded. Entitlement to a low back disability, to include ankylosing spondylitis, is remanded. Entitlement to a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating based on individual Unemployability due to service-connected disability (TDIU) is remanded. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to May 1967. This matter comes to the Board of Veterans Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board has expanded the issue of entitlement to service connection for PTSD to include service connection for an acquired psychiatric disability, to include PTSD. This is in view of the pertinent evidence which contains additional psychiatric diagnoses and theories of service connection and is in conformance with the Federal Circuit's decision in Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). In terms of the Veteran's claims for service connection for lumbar, thoracic, and cervical spine and right hip disabilities, the Board notes that he is currently diagnosed as having degenerative arthritis as well as ankylosing spondylosis. He is also shown to have undergone a total right hip arthroplasty in approximately 2015. See December 2016 VA examination reports. Essential to these claims is a determination as to whether his spine and/or right hip disabilities preexisted service. When no pre-existing medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. The presumption of soundness applies if a veteran's congenital disease is not noted at entry. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). A VA examiner reported in December 2016 that ankylosing spondylitis is an inflammatory arthritis with strong genetic connections. A private physician, Dr. Miller, reported in August 2019 that ankylosing spondylitis is a progressive inflammatory disease of unknown etiology that occurs between the second and fourth decades of one's life, with the most common age occurring in individuals in their 20s. As it is unclear from the evidence currently of record, including the evidence above, whether ankylosing spondylitis is a congenital "defect" or a "disease", a remand is necessary to obtain medical clarification on the matter. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. In addition, VA medical records show that the Veteran first sought medical treatment from VA in 2004, including treatment for low back pain and ankylosing spondylitis. These records also note that the Veteran had a 10-year history of ankylosing spondylitis and that he had been receiving private treatment for the disability. Notably, there are no treatment records for this disability on file prior to 2004. Moreover, there are no treatment records on file regarding the total right hip arthroplasty that the Veteran underwent in approximately 2015. Accordingly, an attempt must be made to obtain these pertinent, private treatment records. 38 U.S.C. § 5103A (b;) 38 C.F.R. § 3.159. Also, there appears to be outstanding records from the Social Security Administration (SSA) that should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this regard, the Veteran's representative submitted a copy of a May 1997 notice letter awarding the Veteran disability benefits effective in September 1997. Unfortunately, this notice letter does not show what disability(ies) the Veteran was awarded disability benefits for. VA attempted to obtain the Veteran's SSA medical records in June 2019 and was informed in July 2019 that there were no available medical records. However, VA only requested the medical records, not the disability decision itself or any other pertinent records. Accordingly, VA should make another request to SSA for all relevant records that pertain to the Veteran's disability claim, to specifically include the actual favorable award decision in addition to the underlying medical records. With respect to the Veteran's newly expanded claim for service connection for a psychiatric disability, to include PTSD, the record contains a December 2020 private medical opinion from Dr. Morgan diagnosing the Veteran as having persistent depressive disorder secondary to chronic pain originating from this service injuries. In view of this evidence, the Board finds that the issue is inextricably intertwined with the pending claims for service connection for degenerative arthritis and ankylosing spondylitis of the lumbar, thoracic and cervical spine and right hip and must therefore be deferred pending resolution of these latter claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Also inextricably intertwined with the issues discussed above is the issue of entitlement to a TDIU. See 38 C.F.R. § 4.16(a). Moreover, the issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to DEA benefits. See 38 U.S.C. § 3501; 38 C.F.R. § 21.3021. Accordingly, these issues must also be deferred. Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the physicians/medical facilities that he received treatment from for his claimed disabilities ever since service, to specifically include the period from approximately 1994 to 2004. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Make another attempt to obtain from SSA all records related to the favorable disability rating determination in May 1997, to include the favorable decision itself and the underlying medical records. 3. Provide the Veteran's claims file to an examiner who is qualified to give an opinion on the Veteran's spine and right hip disabilities. The entire claims file (both the paper claims file and any relevant medical records contained in Legacy Content Manager Documents and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If the examiner finds it appropriate to examine the Veteran, then the Veteran should be scheduled for an examination. After reviewing the pertinent evidence of record (and/or examining the Veteran if deemed appropriate), to specifically include the December 2016 and March 2020 VA examination reports and the private reports from Dr. Miller in August 2019 and August 2020, Dr. Frigon in August 2020, and P. Yocum, DC in August 2016, the examiner is asked to address the following questions: a) Is the Veteran's current diagnosis of ankylosing spondylosis of the lumbar, thoracic, and cervical spine and right hip a congenital "disease" or a "defect" within the meaning of applicable VA regulations? The Board notes that "defects" are usually static in nature, so not generally subject to episodic improvement or worsening, whereas "diseases" are. b) If the Veteran's diagnosed ankylosing spondylosis of the lumbar, thoracic and cervical spine and right leg is considered a congenital "disease," provide an opinion as to whether there is clear and unmistakable evidence that the disease preexisted service and was NOT aggravated beyond natural progression during service. c) If the Veteran's diagnosed ankylosing spondylitis of the lumbar, thoracic, and cervical spine and right leg is considered a "defect," provide an opinion as to whether there is additional disability due to disease or injury superimposed upon such defect during service. d) Is it at least as likely as not that the Veteran's diagnosed degenerative arthritis of the spine and right hip is related to a disease or injury in service, or did arthritis manifest within one year of service separation? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. After all development has been completed, the Agency of Original Jurisdiction (AOJ) should readjudicate the appeal based on the additional evidence. If any benefit being sought in this appeal is not granted, the AOJ should furnish the Veteran and representative with a supplemental statement of the case and give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.