Citation Nr: 22013702 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 11-13 767 DATE: March 10, 2022 REMANDED Entitlement to service connection of a bilateral leg disorder is remanded. Entitlement to service connection of an acquired psychiatric disorder, is remanded. Entitlement to service connection of a lumbar spine disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1981 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, these issues came before the Board in September 2014 and April 2018, at which time the Board remanded them for further development. In March 2021, the Board issued a decision which denied the issues addressed herein. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court), and in November 2021, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to reverse the decision of the Board and remand the issues for further development as agreed between the parties. The issues are now returned to the Board for such development. As was noted in the March 2021 Board decision, the Veteran initially testified in support of his appeal before a Veterans Law Judge in April 2013. Unfortunately, the Veterans Law Judge who conducted that hearing has since retired from the Board. The Veteran was afforded the opportunity for a new hearing, but in February 2018, the Veteran responded that he did not wish for an additional hearing. To date he has not asserted his wish for a new hearing. 1. Entitlement to service connection of a bilateral leg disorder is remanded. 2. Entitlement to service connection of an acquired psychiatric disorder, is remanded. 3. Entitlement to service connection of a lumbar spine disorder is remanded. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In the JMR, the parties agreed that the Board, in its March 2021 decision, erred on several points that require a remand to ensure proper development of the claims prior to final adjudication of the issues on appeal. Specifically, the parties found that multiple specific medical records had not been translated from Spanish to English prior to adjudication, which frustrated judicial review, and did not meet the Court's Rules of Practice and Procedure. See U.S. Vet. App. R. 3(h); see also Tucker v. West, 11 Vet. App. 369, 374 (1998). As such, prior to any further adjudication, the RO should ensure proper translation of all documents identified in the JMR, as well as any additional documents obtained by virtue of these remand orders. Additionally, the parties found that the Board failed to ensure VA had complied with its independent duty to obtain all VA treatment records. 38 C.F.R. § 3.159(c)(2). Specifically, the parties noted that the record included treatment records from the San Juan VA Medical Center which had been scanned into the VistA imaging capture program, but were not available as part of the claims file. As such, on remand, the RO should make all necessary attempts to ensure the VA treatment records from the San Juan VAMC are associated with the claims file, to include any additional VA treatment records created since the time of the Board's prior decision in this matter. The RO should also make any necessary attempts to obtain any reasonably identified private treatment records identified by the Veteran since the time of the prior Board decision. The parties also agreed that the July 2016 VA spine examination, and the August 2016 VA psychiatric examination were inadequate for various reasons. First, the parties agreed that the examiner failed to fully address the Veteran's competent and credible lay statements of symptoms. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). As such, the parties agree that a remand is required to ensure complete consideration of the evidence in record, to include the Veteran's lay statements. Finally, the parties agreed that the medical opinion pertaining to the Veteran's psychiatric disability, as secondary to his ankle disability is inadequate. Secondary service connection may be granted based on either causation of a disability by a service-connected disability, or aggravation beyond natural progression of a disability by a service-connected disability. 38 C.F.R. § 3.310(b). In August 2016, an examiner was requested to opine as to secondary causation or aggravation of the Veteran's psychiatric disability by his ankle disability. However, when considering aggravation, the examiner reversed the analysis, finding that the ankle was not aggravated by the psychiatric disability. As this does not address the question on appeal, on remand, an addendum opinion should be obtained which addressed the question at hand. Finally, the parties agreed that to the extent the outcome of the service connection claims may have a direct bearing on the Veteran's entitlement to TDIU, that issue is inextricably intertwined, and must also be remanded pending the ordered development. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeal. The Veteran should be requested to identify any outstanding private treatment records which may not be of record, so that VA may make attempts to obtain those records on his behalf. If any private treatment records are identified, the RO should make all necessary and proper attempts to obtain those records. If the records cannot be obtained, notify the Veteran and his attorney in writing and allow time to submit the records. 2. The RO should make efforts to ensure that all VA treatment records are associated with the claims file. Specifically, the RO should obtain and associate with the claims file any outstanding treatment records created since the most recent Board opinion in this matter. Additionally, the RO must make efforts to ensure that any records from the San Juan VAMC which are scanned into VistA imaging capture system are made readable and included in the claims file. If any VAMC records cannot be associated with the claims file, the RO should notify the Veteran and his representative in writing. 3. Thereafter, the RO should ensure that all treatment records which are in Spanish have been properly translated to English. Specifically, the RO should ensure proper translation of the 2006 Physician's Notes from Drs. C and M.M.; the 2004 San Francisco Pain Management note; the August 11, 2008, Adult Function Report; the 2005 Physician's note from Dr. B; the October 30, 2006 Medical note from University Medical Services (submitted August 25, 2008); and the October 2005 lay statement, as well as any additional records which are obtained and associated with the claims file as part of the above ordered development which may warrant translation. 4. Thereafter, schedule the Veteran for a VA examination of his low back. The examiner is requested to conduct a thorough examination of the back, as well as take a detailed medical history from the Veteran. The examiner should also review the complete claims file, to include the 2016 examination report and review the Veteran's lay statements regarding his symptoms and history. The examiner is then requested to answer the following questions: What is the Veteran's specific diagnosis and has it changed since the time of the 2016 examination? Did the Veteran's low back disability manifest to a compensable degree during active service or within one year of separation from service? Is the Veteran's low back disability at least as likely as not related to any incident of active service? Is the Veteran's low back disability at least as likely as not caused by the service-connected right ankle disability? Is the Veteran's low back disability at least as likely as not aggravated by the Veteran's service-connected right ankle disability? All opinions should include a discussion and thorough rationale, and should specifically include discussion of the Veteran's lay statements regarding symptoms and continuity. 5. Schedule the Veteran for a VA psychiatric examination. The examiner is requested to conduct a thorough psychiatric examination, as well as take a detailed medical history from the Veteran. The examiner should also review the complete claims file, to include the 2016 examination report and review the Veteran's lay statements regarding his symptoms and history. The examiner is then requested to answer the following questions: What is the Veteran's specific diagnosis and has it changed since the time of the 2016 examination? Did the Veteran's acquired psychiatric disability manifest to a compensable degree during active service or within one year of separation from service? Is the Veteran's acquired psychiatric disability at least as likely as not related to any incident of active service? Is the Veteran's acquired psychiatric disability at least as likely as not caused by the service-connected right ankle disability? Is the Veteran's acquired psychiatric disability at least as likely as not aggravated by the Veteran's service-connected right ankle disability? The examiner should take care to not reverse the analysis of this question and focus on whether the ankle is the aggravating factor, not vice versa. All opinions should include a discussion and thorough rationale, and should specifically include discussion of the Veteran's lay statements regarding symptoms and continuity. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel