Citation Nr: 21030918 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-15 377 DATE: May 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than an anxiety disorder, and diagnosed as major depressive and mood disorders, is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a right ankle disability, is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDING OF FACT The evidence supports a finding that the Veteran has a current diagnosis of an acquired psychiatric disorder, other than an anxiety disorder, and diagnosed a major depressive and mood disorders, that is related to service. CONCLUSION OF LAW The criteria for the establishment of service connection for an acquired psychiatric disorder, other than an anxiety disorder, and diagnosed as major depressive and mood disorders, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1981 to October 1984, from October 2003 to August 2004, from August 2006 to January 2008, from December 2008 to February 2010, and from June 2011 to July 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2016 and March 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in November 2018, at which time they were remanded for further development. The November 2018 Board decision remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety. In February 2021, the RO granted entitlement to service connection for an anxiety disorder and assigned a 100 percent evaluation, effective December 12, 2016. The Veteran has not disagreed with the effective date of the evaluation and, therefore, the claim is no longer before the Board. The Board, however, has amended the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder to reflect this development. In March 2021, the Veteran submitted a Notice of Disagreement, VA Form 10182, and a Higher-Level Review request, VA Form 20-0996, for the issues currently on appeal. Later that month, VA informed the Veteran that it was unable to process his request to opt into the AMA system because the VA Form 10182 was not signed. The Veteran has not submitted an updated form, and the Board will proceed with adjudication under the current Legacy system. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 38 F3d 1163 (Fed. Cir. 2004). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disorder, other than an anxiety disorder Pursuant to the November 2018 Board remand, the Veteran received a VA examination in February 2021 and the examiner noted that he did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. She found, however, diagnoses of a major depressive disorder, anxiety disorder, and mood disorder. Based on the results of the examination, the examiner concluded that the Veteran's diagnosed conditions were at least as likely as not a result of an in-service stressor related event. The Veteran showed chronicity and continuity after fulfilling all deployments. Social markers of family disruption were also revealed in the medical records and illustrated the pattern of a depressive state and the Veteran's disruptive behavioral decline. The Board finds the February 2021 VA examination highly probative as to the diagnoses of a major depressive disorder and mood disorder and concludes that service connection is warranted. The examiner considered the Veteran's history and in-service experiences and provided a thorough rationale for her conclusions. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) (2017); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Entitlement to service connection for a low back disability The Veteran received a VA examination in January 2017 and the examiner noted diagnoses of lumbar degenerative disc disease, paravertebral muscle spasm and dextroscoliosis. The Veteran separated from service in February 2010 but stated that his lumbar condition began in 2016. It had progressively deteriorated, and the Veteran complained of localized stiffness and pain. Based on the results of the examination, the examiner concluded that the condition was less likely than not incurred in service, as there was clinical and objective evidence that the condition dated back to 2016, several years following active service. The Board finds the January 2017 VA examination inadequate, as there is evidence that the Veteran complained of back problems prior to 2016. Specifically, the medical evidence indicates that the Veteran was seen during service for back pain in July 2019, stating that he noticed it began during physical training while doing sit-ups. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this claim must be remanded for a new examination. Entitlement to service connection for a left ankle disability, to include as secondary to a right ankle condition. The Veteran received a VA examination in April 2016 and the examiner opined that the claimed left ankle condition was less likely as not proximately due to or the result of the service-connected right ankle condition. However, the examiner's opinion was inadequate, as he provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Board notes that the Veteran received a VA examination in January 2017 for his right ankle condition in connection with a claim for increase. The examiner, however, did not note a current left ankle disability nor did he offer an opinion on the etiology of the left ankle osteoarthritis diagnosed in 2014. Therefore, this claim must be remanded for a new examination. Entitlement to service connection for a cervical spine disability As the Veteran's medical records establish persistent symptoms of a cervical disability and there is an indication, through assertions of the Veteran, that it may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination to determine the nature, onset and etiology of any diagnosed cervical spine disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. The examiner should review the claims folder and note such review in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disability had its onset or is otherwise related to the Veteran's military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left ankle disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left ankle disability had its onset or is otherwise related to the Veteran's military service. The examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left ankle disability was caused or aggravated by his service-connected right ankle disability. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran's left ankle disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed cervical spine disability. The examiner should review the claims folder and note such review in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine disability had its onset or is otherwise related to the Veteran's military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.