Citation Nr: 21040329 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-41 084 DATE: July 3, 2021 REMANDED 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for hepatitis C is remanded. 3. Entitlement to service connection for a brain disability manifested by cognitive issues is remanded. 4. Entitlement to service connection for a psychiatric disability (to include posttraumatic stress disorder (PTSD), anxiety, and depression) is remanded. 5. Entitlement to service connection for a psychiatric condition for treatment purposes only (under 38 U.C.S. § 1702) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1972 to May 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2012 Department of Veterans Affairs (VA) decisional letter. In September 2020, a virtual hearing was held before the undersigned; a transcript is in the record. The Board finds that further development of the record is needed for a proper adjudication of these claims. The record shows the Veteran reported he has sought treatment at the San Antonio VA medical center (VAMC) from as early as 1975, Huntsville VAMC in the late 1970s, New Orleans VAMC, and Gainesville VAMC. While some VA treatment records from the 1980s are associated with his claims file, a review of the record found that VA treatment records from San Antonio VAMC, Huntsville VAMC, New Orleans VAMC, and Gainesville VAMC were not obtained, and it is not clear whether any further pertinent VA treatment records exist and are outstanding. Notably, VA attempted to contact the San Antonio VAMC in April 20, 2018 and did not received a response to that single attempt. Any existing pertinent VA treatment records are constructively of record, and an exhaustive search for all outstanding pertinent records of the Veteran's reported treatment is necessary. In March 2016, the Veteran submitted a VA Form 21-4142 authorization and consent to release information for records at the Social Security Administration (SSA). On March 23, 2016, VA's medical records request was rejected as the provider listed (SSA) is non-private. Any existing SSA records are constructively of the record, and medical records considered in connection with an SSA disability determination may be pertinent evidence and must be sought. Moreover, in December 2011, the Veteran submitted complete VA Form 21-4142s for VA to obtain his private treatment records from Atlanta Emory University Hospital, Gainesville Shands Hospital, Saint Joseph Hospital in Atlanta, and New Orleans Oschner Hospital. He indicated he received treatment at the listed facilities for his back, hepatitis C, and migraines as early as in 1991. It does not appear the Agency of Original Jurisdiction (AOJ) acted on the submitted VA Form 21-4142s. (In March 2016 the AOJ attempted a request to the Veteran to submit updated VA Form 21-4142s for Atlanta Emory University Hospital, Gainesville Shands Hospital, Saint Joseph Hospital of Atlanta, and New Orleans Oschner Hospital, but a response is not shown.) As such private treatment records may contain information pertinent (and perhaps be critical) to these claims, another attempt to obtain them is indicated. The Board observes that the duty to assist is not a one-way street; a veteran may not passively wait for assistance when her cooperation is needed for evidentiary development critical to a claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If he does not respond with updated authorizations for VA to obtain records from pertinent private treatment records, it will be assumed that such records either do not exist or, if existing, do not support his claim. 1. Entitlement to service connection for a back disability. On April 2016 VA back examination, the Veteran reported his back condition began in service and has worsened as he has gotten older. Degenerative arthritis of the spine was diagnosed. In the opinion against the claim, the examiner opined there were no service records indicating any back complaints during military service. At the September 2020 Board hearing, the Veteran testified that he initially injured his back in boot camp and that the symptoms continued throughout service. He reported he received private treatment (including an epidural) a few months following discharge from service, and that the problems have continued since. He testified that he injured his back again when in the Reserves and was separated from the Reserves because had a minor procedure on his back. The record does not contain service treatment records (STRs) or service personnel records from his alleged period of Reserve service following discharge from active duty. Per his testimony Reserve STRs may contain information pertinent (and perhaps critical) to each of the claims on appeal, and because service records are considered to be of record, an exhaustive search for such records is necessary. 2. Entitlement to service connection for hepatitis C. The Veteran alleges he was exposed to hepatitis C risk factors in service (to include unprotected sex and an air-gun inoculation when he entered service) and began experiencing extreme fatigue in service. A July 1985 VA treatment record notes the Veteran was recently evaluated by a private provider for hepatitis. The Veteran has not been afforded a VA examination to determine the nature and likely etiology of the claimed liver disability. Considering the state of the medical evidence of record, an examination to secure a medical opinion in this matter is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. 4. 5. Entitlement to service connection for residuals of a brain condition, a variously diagnosed psychiatric disability, and to service connection for a psychiatric disability for treatment purposes (under 38 U.S.C. § 1702). On February 2016 VA mental disorders examination, anxiety disorder due to a medical condition of a liver disorder was diagnosed. The provider noted that the Veteran's medical condition causes anxiety about treatment options and limited life expectancy. While it was noted that during service the Veteran had occasional, intermittent chest pain which could not be explained by physical examination, the examiner did not address the December 1974 cardiac consultation, which notes "a more likely explanation would certainly be anxiety and an unusual concern with his heart" or a December 1983 clinical record noting complaints of headaches for 3 weeks and an assessment of anxiety neurosis. Also, 1983 to 1985 VA treatment records note multiple complaints of atypical chest pain with VA providers opining it is anxiety related or psychosomatic complaints (suggesting a psychiatric problem related to concerns over medical condition). The February 2016 VA medical opinion is inadequate for rating purposes suggests incomplete review of the record. An alternative theory of entitlement has been raised by the record (that the Veteran's psychiatric disability is secondary to his hepatitis C, for which service connection is sought on appeal). That theory of entitlement is inextricably intertwined with the claim of service connection for hepatitis C. In his December 2011 claim, the Veteran requested service connection for a "brain condition", and the claim has been variously characterized by the AOJ as "residuals of a head injury" and a "chronic disability of the brain to include residuals of a head injury." An August 1973 clinical record notes complaints of a headache for the past 3 weeks and an assessment of an anxiety neurosis, possibly indicating the condition is secondary to a psychiatric condition. A December 1983 VA treatment record notes complaints of headaches which reported to have started 7 years ago; the provider opined that the headaches are nonorganic and likely secondary to chronic tension or simply now part of the Veteran's personality. The Veteran has not been afforded a VA examination to confirm, and determine the nature and likely etiology of, the claimed brain disability, to specially include whether it is related to his complaints in service or to a psychiatric disability, for which service connection is sought on appeal. Considering the state of the medical evidence of record, an examination to secure a medical opinion in this matter is necessary. See McLendon, 20 Vet. App. 79. The matters are REMANDED for the following: 1. Obtain for the record from SSA a copy of their determination on the Veteran's claim for SSA disability benefits and the complete medical records considered in connection with such determination. If any such records are unavailable, it should be so noted in the record with explanation (e.g., that the records were lost or destroyed). 2. Arrange for an exhaustive search to secure for the record the Veteran's complete STRs (and any service personnel records) that may contain information pertaining to treatment he received for the disabilities on appeal (specifically for his alleged period of Reserve service following discharge from active duty service). The search should encompass all storage facilities where such records may have been retired. If the records are unavailable because they have been irretrievably lost or destroyed, it should be so certified (with the scope of the search described), and the Veteran should be so notified (and asked to provide copies of any STRs he may have in his possession). 3. Ask the Veteran to identify all providers of evaluations and treatment he has received for his disabilities on appeal, specifically including when he was seen/ treated at San Antonio, Huntsville, New Orleans, and Gainesville VAMCs. Arrange for exhaustive development to locate, and secure for the record, all outstanding VA records of evaluations and treatment the Veteran received for the disabilities on appeal (specifically including once-identified-as-existing records from San Antonio, Huntsville, New Orleans, and Gainesville VAMCs). He should be asked to submit any such VA treatment records in his possession (if he does not do so, the assumption being that he has none). Efforts to secure such records must continue until it is reasonably certain that such records do not exist or that further effort to obtain those records would be futile (upon a negative response from the VAMCs and any record storage facility where such records may have been retired). The scope of the search and all responses should be documented in the record. If any records are unavailable because they have been irretrievably lost or destroyed, a formal finding of unavailability (with the scope of the search described in detail) should be associated with the claims file, and the Veteran should be so notified. Ask the Veteran to complete and submit an updated VA Form 21-4142 (as prior ones have expired) authorizing VA to secure for the record complete clinical records of all private evaluations and treatment he has received for the claimed disabilities on appeal from Atlanta Emory University Hospital, Gainesville Shands Hospital, Saint Joseph Hospital of Atlanta, and New Orleans Oschner Hospital. Obtain those records. If any private records identified are not received pursuant to VA's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. 4. After the development requested above is completed, arrange for the record to be forwarded to an appropriate clinician (in orthopedics) for review and a medical advisory opinion regarding the etiology of his current back disability. [If further examination is deemed necessary, it should be arranged.] The entire record (to include any evidence of postservice continuity of complaints/symptoms) must be reviewed by the consulting provider. The consulting provider should: (a.) Identify (by diagnosis) each back disability entity shown by the record. (b.) Identify the likely etiology for each back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disability is etiologically related to the Veteran's service? (c.) If a diagnosed back disability is found to not be related to service, identify the etiology that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to supporting factual data and/or medical principles. 5. Also, arrange for the Veteran's claims file to be forwarded to an appropriate clinician for review and a medical advisory opinion regarding the nature and likely etiology of his claimed liver disorder. [If further examination is deemed necessary, it should be arranged.] The entire record (to include any treatment records received pursuant to this remand) must be reviewed by the consulting provider. The consulting provider should: (a.) Identify (by diagnosis) each liver disorder found/shown by the record, including hepatitis C. (b.) Identify the most likely etiology for each liver disorder. Specifically, is it at least as likely as not (a 50% or greater probability) that the disorder originated during, or is otherwise etiologically related to the Veteran's active service, to include the activities and events in service he has described (e.g., unprotected sex), including claimed exposure to contaminated blood during an air gun inoculation on induction? (c.) If a diagnosed liver disability is found to be unrelated to service, identify the etiology that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to supporting clinical data and medical principles. If it is determined that an opinion sought cannot be given without resort to mere speculation, (to satisfy legal requirements) the consulting provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the requisite knowledge or training). 6. Also, arrange for the Veteran to be examined by an appropriate (in neurology) clinician to determine the nature and likely etiology of his claimed brain disability manifested by cognitive issues. The examiner must review the Veteran's record and this remand. On examination of the Veteran and review of his record, the consulting provider should: (a.) Identify (by diagnosis) any brain disability entity (manifested by cognitive issues) found/or shown by the record. (b.) Identify the likely etiology for each brain disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran's active service, to include headache complaints therein. (c.) If a diagnosed brain disability is determined to not be related to service, is it at least as likely as not that it was caused or aggravated (the decision must address aggravation) by a service-connected disability. [Aggravation must be addressed]. (d.) If a diagnosed brain disability is determined to not have been caused or aggravated by a service-connected disability, identify the etiology for the brain disability that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to supporting factual data and medical principles. 7. Review the record and readjudicate the remanded claims for which the above development is sought. 8. Thereafter, arrange for a psychiatric examination of the Veteran to determine the nature and likely etiology of any/each acquired psychiatric disability found. Upon review of the expanded record, and the readjudications of the other claims remanded, the examiner should: (a.) Identify by diagnosis each psychiatric disability found. (b.) If a psychosis is diagnosed, identify when it became manifest (as shown by the record). (c.) Identify the etiology of each acquired psychiatric disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that it is related directly to the Veteran's service (was incurred therein). (d.) If a psychiatric disability is found to not be directly related to the Veteran's service, is it at least as likely as not that the it was caused or aggravated by a service-connected disability. [Aggravation must be addressed]. (e.) If a diagnosed psychiatric disability is found to be unrelated to service, identify the etiology considered more likely, and explain why that is so. All opinions must include rationale. The examiner should include discussion of the significance of the complaints and findings in service of anxiety reactions related to health concerns and documentation of continued anxiety complaints following separation from service. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.