Citation Nr: 22016607 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-36 428A DATE: March 22, 2022 REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to service connection for lumbosacral strain (claimed as middle and lower back condition) is remanded. Entitlement to service connection for torso (ribs) pain, to include as caused or aggravated by lumbosacral strain, is remanded. Entitlement to service connection for left upper leg pain, to include as caused or aggravated by lumbosacral strain, is remanded. Entitlement to service connection for right upper leg pain, to include as caused or aggravated by lumbosacral strain, is remanded. REFERRED Entitlement to service connection for a knee disorder is referred to the agency of original jurisdiction for appropriate action. REASONS FOR REMAND The Veteran served on active duty from October 2001 to October 2004, with additional service in the Army National Guard of Michigan and the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision. A National Guard report of separation and record of service (NGB Form 22) indicates that the Veteran served in the Army National Guard of Michigan and as a reserve of the Army from January 2008 to January 2014. The active military, naval, or air service of a veteran may include service as a member of the Reserves, or service as a member of the Air or Army National Guard, subject to additional requirements. 38 U.S.C. § 101(24); 38 C.F.R. § 3.1(b). It does not appear that the agency of original jurisdiction (AOJ) attempted to verify the Veteran's service in the Army Reserve and Army National Guard and to obtain any associated treatment records. On his notice of disagreement (NOD) of March 2015, the Veteran alleged broadly that VA has been unable to obtain his service medical records. VA has a duty to assist in retrieving relevant records from a federal department or agency unless further attempts would be futile. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In correspondence of March 2015, the Veteran alleged that he suffered a knee injury during combat service. The issue of entitlement to service connection for a knee disorder, not having been adjudicated by AOJ, will be referred to the AOJ for further action pursuant to 38 C.F.R. § 19.9(b). 1. Entitlement to a rating in excess of 30 percent for PTSD. A rating decision of June 2014 granted service connection for PTSD, with an evaluation of 30 percent and an effective date of January 28, 2013. The Veteran filed a NOD in March 2015 and VA Form 9 in July 2017. Disability ratings are determined by applying the criteria of VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130, DC 9411, a higher, 50-percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms on a par with: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long- term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A VA examination was conducted in June 2014. Depressed mood, anxiety, and chronic sleep impairment were the only symptoms specifically noted as applying to the Veteran's diagnosed PTSD. The examiner noted, as history, that a PTSD record of June 2013 documented flashbacks, intrusive thoughts and emotional numbing. It was noted, under the heading of "Behavioral Observations," that the Veteran's mood is a "rollercoaster," with some weeks being stable and other being characterized by depression to the point of difficulty getting out of bed. Also noted was the Veteran's suicidal ideation from 2004 to 2006 and for a week in 2010. He "bought a brick and chain and thought about drown." Panic attacks were not found to be a current symptom, although the report indicated that the Veteran "used to have panic" when going to visit family in the past. The report states that the Veteran does not care about people whom he does not know (it is unclear whether this is an examination finding or merely a noted remark of the Veteran). The examiner characterized the overall PTSD symptoms, in summary, as not severe enough either to interfere with occupational and social functioning or to require continuous medication. At the same time, however, the report noted that, under the care of his primary care physician, the Veteran has been treated with Effexor since 2008, and that he had tried Abilify, resulting in a weight-gain side effect. On his NOD filed in March 2015, the Veteran asserted that, during December 2014, he endorsed mental health symptoms that included emotional numbing, intrusive thoughts, lack of emotions, memory loss, panic attacks, and suicidal thoughts or feelings. Without making a medical determination, the Board considers that these reported symptoms raise the possibility that the Veteran's service-connected disability may have worsened in severity following the most recent VA examination. The Board will therefore remand for a new VA examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). A new examination must be scheduled to determine the current severity of the Veteran's service-connected PTSD. The June 2014 VA examination is also inadequate because the findings of the examiner appear to be incomplete. Specifically, although memory impairment is listed in the Rating Formula as one of the representative symptoms of a higher, 50- percent rating, the VA examination report makes no finding as to the Veteran's short-term or long-term memory. 2. Entitlement to a TDIU. The June 2014 rating decision denied entitlement to a TDIU. A request for a TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial service- connection claim or an increased-rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, the TDIU issue will be remanded as an aspect of the other remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for lumbosacral strain (claimed as middle and lower back condition). 4. Entitlement to service connection for torso (ribs) pain, to include as caused or aggravated by lumbosacral strain. 5. Entitlement to service connection for left upper leg pain, to include as caused or aggravated by lumbosacral strain. 6. Entitlement to service connection for right upper leg pain, to include as caused or aggravated by lumbosacral strain. As reflected in his filed claim, NOD, and other statements of record, the Veteran maintains that he injured his back from an explosion that occurred when he ran over an anti-tank mine while serving in Iraq. He states that he suffered an immediate back injury, that he did not seek medical attention at the time, and that his back symptoms have become progressively worse from service to the present. He also alleges that his lower back pain radiates into his legs and into the rib area. When examined in September 2004, the Veteran indicated that he had been treated during his service for cuts to his nose and middle finger, but he specifically denied having any past or current back pain or back problem. The Veteran received an Army Commendation Medal that references "service in combat." In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The latter provision is not a substitute for adequate evidence of a current disability and a nexus to service, but rather serves only to reduce the evidentiary burden on combat veterans with respect to submission of evidence regarding the incurrence or aggravation of an injury or disease while in service. See Kessel v. West, 13 Vet. App. 9, 16-19 (1999) (en banc). In June 2014, the Veteran underwent VA examinations for the back and for hip and thigh conditions. Lumbosacral strain was diagnosed. With respect to the legs, the diagnosis was upper leg pain by history with unremarkable exam. The examiner noted, as medical history, the Veteran's account of in-service injury to his back when "his tanker was blown out during Iraq," with pain since that time. The Veteran acknowledged that he did not report, or seek treatment for, his back injury during service and was first evaluated for his back pain in 2008 by his personal physician. The VA examiner offered a negative nexus opinion as to the back. The stated rationale was the absence of documented treatment of lumbar strain during service, the fact that the Veteran did not see a doctor for his lower back until 2008, and that his current job (requiring him to stand 10 hours per day, 6 days per week) "can cause his upper and lower back problems." No nexus opinion was offered with respect to the claims relating to the torso (ribs), left leg, and right leg. A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the nexus opinion of the June 2014 VA examiner is not adequate, the Board will remand for a new examination and nexus opinion. 38 C.F.R. § 19.9(a). As a layperson, the Veteran is competent to report observable symptoms that come to a person through his or her senses. See Layno v. Brown, 6 Vet. App. 465 (1994). In this case, while the VA examination report noted the Veteran's contention that he first experienced low back symptoms during service and had recurrent symptoms, the rationale for the negative nexus opinion does not indicate that such competent evidence was considered. In formulating a nexus opinion, a VA examiner must consider a veteran's competent account of the onset and history of the claimed disorder, and it is not sufficient merely to acknowledge such statements as medical history. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). A VA record of May 2015 notes that the Veteran was a "no show" for a VA examination of April 2015. In a filing of September 2015, the Veteran explained that he missed a VA examination for his back, knee, and leg conditions because he had been in the process of moving and, therefore, did not receive the notification letter. He requested the scheduling of another examination. Examples of good cause for failing to appear for a VA examination include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a); see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997). The Board determines that good cause has been shown for the Veteran's failure to appear, and that the Veteran should be afforded an opportunity to be examined. It is the Veteran's responsibility to report for a scheduled examination of which he is notified and to cooperate in the development of the case. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development with respect to the Veteran's TDIU claim, to include sending the Veteran VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). 3. Undertake appropriate development to associate with the record any outstanding, identified, private medical records pertinent to the remanded issues and any outstanding VA treatment records. All efforts to obtain such records must be documented in the electronic claims folder. 4. Undertake appropriate development to verify the Veteran's periods of service with the Army Reserve and Army National Guard, to include any periods of active duty training and inactive duty for training. A summary that identifies the Veteran's periods of service must be provided in a VA memorandum to be associated with the claims folder. If the requested verification is not possible, it should be so stated in a memorandum, along with a description of the extent to which verification was attempted. 5. Undertake appropriate development to obtain any outstanding service treatment records not already of record, to include the Veteran's complete service treatment records for his service in the Army Reserve and Army National Guard. Efforts to locate the reports/records must continue until it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected PTSD. The examiner must fully describe the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The report must include specific consideration of the Veteran's statement, made on the notice of disagreement filed in March 2015, that the mental health symptoms he endorsed in December 2014 included emotional numbing, intrusive thoughts, lack of emotions, memory loss, panic attacks, and suicidal thoughts or feelings. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disorder of the back, torso, and legs, to include any associated neurological impairment of the legs and torso (ribs), at any time since the Veteran's claim was filed in January 2014, even if now resolved. More than one examination may be scheduled as needed to provide an adequate medical opinion. The examiner must offer an opinion as to whether any disorder of the back, torso (ribs), left leg, and/or right leg at least as likely as not: a. Is related to an in-service disease, injury, or event, to include the Veteran's competent account of in-service injury to his back and legs; b. Had its inception during active duty service; c. Manifested during active service or within one year after discharge from service; d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; or e. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability or a disorder for which service-connection is sought, to include a back disorder. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Advise the examiner that the Veteran is competent to report his symptoms and history, that such reporting must be acknowledged and considered in formulating any opinion, and that the examiner, in rendering the requested opinion, is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) A rationale is required for all opinions in the report. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.