Citation Nr: 22017169 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-11 067A DATE: March 24, 2022 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for a neck disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder (MDD) with anxiety, as secondary to back and neck disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The competent medical evidence is at least in equipoise with regards to the Veteran's back and neck disabilities being etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for a neck disability have been met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. §§ 3.102, 3.310 REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active service in the United States Marine Corps from October 1976 to October 1980. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 1. Entitlement to service connection for a back disability 2. Entitlement to service connection for a neck disability The Veteran contends that his back and neck disabilities are related to injuries sustained during his active duty. The Board finds that the competent medical evidence is at least in equipoise with regards to establishing that the Veteran's back and neck disabilities were incurred during service. Therefore, the claims for service connection must be granted. Here, the Board finds that the competent medical evidence that speaks to the claimed nexus between the Veteran's claimed back and neck disabilities are in at least equipoise, represented by two opposing nexus opinions. In June 2016, the Veteran was afforded a VA examination to assess the nature and etiology of his claimed back and neck disabilities. Upon examination of the Veteran and a review of the Veteran's medical records, the VA examiner concluded that the Veteran's diagnosed back and neck disabilities, which included degenerative arthritis, was less likely than not related to the Veteran's active service. The VA examiner found that it was less likely than not that the either of the Veteran's neck or back disabilities were etiologically related to his active service, to include his in-service back injury. To this end, the examiner found that the Veteran's back and neck conditions were more likely related to his post-military job, which the examiner characterized as physically demanding. In addition to the VA examination, the Veteran, through his representative, provided the VA with two opinion letters from May 2016 and August 2021. The initial May 2016 opinion letter from the Veteran's treating physician, Dr. P.W. who had followed the Veteran's treatment for nearly eight years prior, ostensibly found that the Veteran's back and neck pains had it onset during the Veteran's active service, from his back injury sustained therein. Likewise, in August 2021, the Veteran submitted another private opinion letter, from Dr. M. F., who clearly and explicitly concluded that the Veteran's back and neck disabilities were long term conditions which was incurred during the Veteran's active service, to include his noted back injury. To this end, the private examiner explicitly noted review of the Veteran's medical record, claims file, and service treatment records (STRs), and comprehensively provided a rationale that the Veteran's post-service employment and events, could have exacerbated his already established back and neck injuries sustained during his active service. The Board notes that, as is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds the private positive opinions to be of significant probative value in determining the etiology of the Veteran's back and neck disabilities. The Board notes that the probative value of medical opinion evidence is based not only on the physician's medical background as a doctor, but also their relationship with the Veteran. Here, the initial private examiner is not only a physician, but also the Veteran's treating physician for nearly a decade. As such, the private opinion is not only based the examiner's professional medical experience and expertise, but also personal knowledge of Veteran's disability progression. Additionally, the second private examiner provided a comprehensive analysis and rationale based on a noted analysis of Veteran's medical history and evidence, and also addressed those contentions raised by the VA examiner, to include post-service strain on the Veteran's back and neck due to his employment. As such, the Board finds that despite the negative VA medical opinion, the competent medical evidence of record is at least in equipoise. Thus, the claims for service connection are granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability is remanded. With regard to the claim for service connection for a psychiatric disability, the Board notes that the Veteran has not been provided a VA examination. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that sufficient evidence is of record to trigger the VA's duty to provide the Veteran with an examination to determine the nature and etiology of his psychiatric disability. Here, not only does the evidence demonstrate that the Veteran suffers from depressive symptoms and anxiety, but the Veteran has also provided private opinion letters that tentatively links such psychiatric conditions to his back and neck disabilities, granted herein. In the May 2016 and August 2021 private opinions letter submitted by the Veteran, both examiners seem to hint at some type of etiological connection, or aggravation from the Veteran's, now, service-connected back/neck disabilities. To this end, however, the Board finds that a thorough review of these letters reveals that both opinions are inadequate to be dispositive of the claim. Not only does neither private examiner demonstrate specialty expertise in psychiatry, so to actually diagnose the Veteran with a psychiatric condition under the requisite DSM-V criteria, the opinions are supported by only second-hand subjective reports from the Veteran and not a medically based rationale. As such, the Board finds that the records are sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination for the claimed psychiatric disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, remand is required for further development, to include affording the Veteran contemporaneous VA examinations to assess the nature and etiology of the claimed psychiatric condition. 2. Entitlement to a TDIU is remanded. Because a decision on the remanded issues of increased ratings for a psychiatric disability could significantly impact a decision on the claim for TDIU, as well as the implementation of the disabilities service-connected herein, the issues are inextricably intertwined. A remand of the claim for a TDIU is required pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. Then, schedule the Veteran for a VA examination for claimed residuals of a psychiatric disability, with an appropriate specialist. The examiner must review the claims file and must note that review in the report. The examiner is specifically asked to report on the current nature and severity of the claimed symptoms related to a psychiatric disability. The examiner should diagnose all psychiatric disabilities found, and if necessary, reconcile that diagnosis with diagnosis of major depressive disorder, and other mental disorders of record. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that each psychiatric disability is related to service or any event, injury, or disease during service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that each psychiatric disability is due to or the result of any service-connected disabilities, or at least as likely as not (50 percent or greater probability) that each psychiatric disability is aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disabilities. A complete rationale for any opinion expressed should be included in the examination report. The examiner is asked to review the private opinion letters submitted by the Veteran dated for May 2016 and August 2021 and reconcile any such opinion with any findings to the contrary of record. The examiner should provide a complete rationale for all conclusions reached. 2. Undertake all development deemed necessary for the TDIU claim, to include obtaining appropriate opinions regarding the impact of the Veteran's service-connected disabilities have on his ability to perform daily activities and work-related tasks. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be required due to the service-connected disabilities. The examiner should provide a complete rationale for all conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.