Citation Nr: 21030058 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-27 289 DATE: May 17, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served with the United States Army from April 1965 to January 1967. This matter was previously adjudicated by the Board in a March 2020 decision. In that decision, the Board denied the Veteran's claim for entitlement to service connection for PTSD and a back condition. The Veteran appealed the March 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In January 2021, CAVC granted a Joint Motion for Remand (JMR) and vacated and remanded the March 2020 decision of the Board which denied the Veteran's claims for service connection for PTSD and a back condition. The parties agreed that the Board's March 2020 decision erred when it did not ensure substantial compliance with its prior remand directive because it relied on an inadequate VA medical opinion addressing the Veteran's service connection claim for PTSD. Additionally, the Board failed to ensure that the duty to assist was satisfied as to the Veteran's claim for service connection for a back condition. See January 2021 CAVC Decision. 1. Entitlement to service connection for PTSD is remanded. 2. Entitlement to service connection for a back condition is remanded. As noted above, this claim was remanded by CAVC in January 2021 for action consistent with the terms of the JMR. The parties to the JMR agreed that the Board erred in its March 2020 decision when it: 1) did not ensure substantial compliance with prior remand directive regarding the Veteran's PTSD; 2) relied on an inadequate VA medical opinion regarding the Veteran's PTSD; 3) relied on an inadequate VA medical opinion for the Veteran's back condition and 4) failed to address favorable medical evidence in the Board's statement of reasons and bases for the Veteran's back condition claim. See January 2021 CAVC Decision. Regarding the Veteran's claim for PTSD, the parties to the Joint Motion agreed that the Board erred by relying on an inadequate VA medical opinion, in which a VA physician failed to address relevant treatment records or provide a current disability. Specifically, the September 2019 examiner found the Veteran did not have a current diagnosis of PTSD. However, the examiner failed to address the January 2011 treatment record or June 2011 examination which was previously directed in an earlier Board remand in February 2018. Accordingly, the Board will not proceed with final adjudication of this claim until a competent medical opinion with supporting rationale is obtained that adequately addresses a current diagnosis for PTSD. Therefore, consistent with the terms of the January 2021 JMR, on remand, the agency of original jurisdiction (AOJ) should obtain an addendum medical opinion that adequately addresses the nature and etiology of the claimed PTSD, and shows adequate consideration of the January 2011 treatment record and June 2011 examination. Regarding the Veteran's claim for a back condition, the parties to the JMR agreed that the Board erred by relying on an inadequate VA medical opinion, in which a VA physician relied on a factually incorrect statement. Specifically, the September 2019 VA examination found that the Veteran's medical records were silent for a low back condition within 10 years of discharge from service. However, that statement is inaccurate because the Veteran did report back pain during a May 1967 examination. See May 1967 examination. Additionally, the examiner noted that there was no continuity of treatment after being released from active service. However, the examiner failed to address the Veteran's report that he had experienced continuously worsening back pain. See January 2011 Correspondence. Accordingly, the Board will not proceed with final adjudication of this claim until a competent medical opinion with supporting rationale is obtained that adequately addresses the Veteran's lay statements and medical treatment records. Therefore, consistent with the terms of the January 2021 JMR, on remand, AOJ should obtain an addendum medical opinion that adequately addresses the nature and etiology of the Veteran's back condition, and shows adequate consideration of the lay statements and May 1967 examination and January 2011 private treatment record. In sum, the Board finds that additional examinations are necessary in order to fully consider the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for an addendum medical opinion by an appropriate VA clinician to determine a current diagnosis and etiology of his PTSD. The VA clinician must review all relevant evidence in the claims file, including a complete copy of this remand and the January 2021 JMR. If the clinician determines that an in-person examination is necessary to respond to this request, then a VA examination (or telehealth interview, review of the record etc. if an in-person examination is not feasible) should be so scheduled. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. (a.) The examiner must confirm or rule out a current diagnosis of PTSD. (b.) If it is determined that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. The examiner is advised that the Veteran should be evaluated under the DSM-5 criteria. (c.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine as to whether it is at least as likely as not related to a verified in-service stressor. As directed by the January 2021 JMR. the examiner must specifically address the following evidence: (a.) January 2011 private treatment record which documented symptoms of sleep problems, nightmares, flashbacks, episodes of nervousness, problems with loud noises, and crowds and episodes of irritability (b.) June 2011 VA examination report recording symptoms of efforts to avoid thoughts feelings or conversations associated with trauma, difficulty falling asleep or staying asleep and difficulty concentrating. See January 2011 Correspondence; see also June 2011 examination. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all findings along with the complete rationale for any conclusions reached. 2. Schedule the Veteran for an addendum medical opinion by an appropriate VA clinician to determine an etiology of his back condition. The VA clinician must review all relevant evidence in the claims file, including a complete copy of this remand and the January 2021 JMR. If the clinician determines that an in-person examination is necessary to respond to this request, then a VA examination (or telehealth interview, review of the record etc. if an in-person examination is not feasible) should be so scheduled. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran's back condition was incurred in service or are otherwise medically related to service. As directed by the January 2021 JMR. the examiner must specifically address the following evidence: (a.) May 1967 examination which noted back pain started since he left active duty January 1967, and (b.) January 2011 private treatment record which reported continuous worsening back pain. See May 1967 examination; see also January 2011 Correspondence. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all findings along with the complete rationale for any conclusions reached. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.