Citation Nr: 21029900 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-10 129 DATE: May 17, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for an acquired psychiatric condition, to include as secondary to a lower back condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1981 to August 1982, with additional periods of service in the United States Army Reserve and Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office. As an initial matter, the Board notes that the Veteran filed a claim of entitlement to service connection for, inter alia, back problems, depression, and anxiety. See March 2016 VA Form 21-526. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran's treatment records indicate that he receives treatment for lower back pain, and has been diagnosed with depression and anxiety. See Ponce Health Sciences University (PCHU) Wellness Center records, received April 2020; San Juan VA Medical Center (VAMC) records, received November 2018 in CAPRI. Additionally, VA is required to consider all theories of entitlement to VA benefits, including via secondary service connection, that are either raised by the claimant or reasonably raised by the record. See Schroder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Board notes that the Veteran's treatment records indicate that his depressive and anxiety symptoms may be related to his lower back pain. See PCHU Wellness Center records. Accordingly, the Board finds it appropriate to recharacterize the Veteran's claims as ones of entitlement to service connection for a lower back condition and entitlement to service connection for an acquired psychiatric condition, to include as secondary to a lower back condition. Lastly, the Board notes that the Veteran has referenced a claim for service connection for loss of hearing. See September 2016 VA Form 21-4138. However, while the Veteran is seeking service connection for tinnitus, the claims file does not indicate that the Veteran has sought service connection for hearing loss. If the Veteran believes that he has hearing loss, and that such is related to his active duty service, he is encouraged to file a claim of entitlement to service connection for such condition. 1. Entitlement to service connection for tinnitus is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, the evidence indicates that there may be relevant treatment records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran has received treatment at San Lucas Episcopalian Hospital and PCHU Wellness Center. However, only excerpts of such records have been associated with the claims file. See PCHU Wellness Center records; San Lucas Episcopalian Hospital records, received August 2016. Additionally, the record indicates that the Veteran has received treatment at San Juan VAMC. However, no records relating to such treatment since July 2017 have been associated with the claims file. See San Juan VAMC records. As such, a remand is necessary to allow the AOJ to obtain and associate relevant VA and private treatment records with the claims file. See 38 U.S.C. §§ 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); see Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, the evidence indicates that there may be pertinent service records that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran served in the Army National Guard from 1983 to 2002, and the Army Reserve from 2003 to 2005. See July 2019 National Archives and Records Administration (NARA) SF 180. However, only excerpts of records relating to such service have been associated with the claims file. See Service Personnel Records, received May 2016; Service Treatment Records, received September 2016. As there is a possibility that pertinent service records are extant and not associated with the file, a remand is necessary to afford the AOJ an opportunity to obtain and associate these records with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Second, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's tinnitus. In September 2016, the Veteran was afforded a VA examination in which the examiner opined that the Veteran's tinnitus was less likely than not related to his military service. In support of this opinion, the examiner stated that the Veteran's tinnitus is most likely caused by his hearing loss, and that, in the absence of hearing loss induced by military noise exposure or documentation of tinnitus in his service treatment records (STRs), the etiology of any reported tinnitus over 30 years following separation from service is less likely than not related to acoustic trauma in service. See September 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). However, as discussed above, in addition to his active duty service, the Veteran has additional periods of service in the Army National Guard and United States Army Reserve. As such, the opinion is inadequate to the extent it ignores such. Additionally, as noted above, the record indicates that potentially relevant medical records have not been associated with the claims file. As such, the September 2016 opinion is inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the September 2016 VA opinion to be inadequate, but only to the extent described for adjudication purposes. As such, a remand is necessary to obtain an adequate VA opinion regarding the etiology of his tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a lower back condition is remanded. 3. Entitlement to service connection for an acquired psychiatric condition, to include as secondary to a lower back condition, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is necessary to allow the AOJ to obtain potentially relevant service records, STRs, private medical records, and VA treatment records. See 38 U.S.C. §§ 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); see Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to provide the Veteran with a VA examination to determine the nature and etiology of his claimed lower back condition. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service or with another service-connected disability, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Veteran's medical records reveal treatment for chronic lower back pain. See PCHU Wellness Center records; San Juan VAMC records. Additionally, the Veteran's STRs reveal treatment for lower back pain. See STR-Medical. However, there is no medical opinion of record regarding the nature or etiology of the Veteran's lower back pain. Accordingly, the Board finds that the McLendon requirements are met and the Veteran should be provided a VA examination to determine the nature and etiology of his claimed lower back condition. With respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric condition, the Veteran's medical records indicate that such condition may be related to his claimed lower back condition. See PCHU Wellness Center records. As such, the matter is inextricably intertwined with the Veteran's claim of entitlement to service connection for a lower back condition. Therefore, a remand of the matter is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file: (a.) Any outstanding records for his service in the Army National Guard and Army Reserve, from 1983 to 2005, specifically to include records of ACDUTRA or INACDUTRA; (b.) Any outstanding relevant private treatment records, including records relating to treatment at San Lucas Episcopalian Hospital and PCHU Wellness Center; and (c.) Any outstanding relevant VA treatment records, including records relating to treatment at San Juan VAMC from July 2017 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's tinnitus. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay in-service and post-service history, including onset of symptomatology, employment, and noise exposure. (b.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's tinnitus is related to his military service, to include any period of ACDUTRA or INACDUTRA. (c.) In rendering the requested opinion, the examiner is instructed to consider and address: i. The Veteran's self-reported lay history; ii. Presumed noise exposure; and iii. Any period(s) of ACDUTRA or INACDUTRA. 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 the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that tinnitus did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. After completing the development in Section One above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of his claimed lower back condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed lower back condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include any period of ACDUTRA or INACDUTRA. 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 the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 4. If, and only if, a lower back condition is found to be related to service in Section Three above, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of his claimed acquired psychiatric condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed psychiatric condition, provide the following opinions: i. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition is caused by a service-connected condition, to include any condition found to be related to service in the examinations requested in Section Three above. ii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition, to include any condition found to be related to service in the examinations requested in Section Three above. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. 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 the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.