Citation Nr: 22017588 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-49 150 DATE: March 25, 2022 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for skin cancer is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1970 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In May 2021, the Board remanded the matter for further development. As the matter has been returned for further appellate review, the Board finds additional development is necessary before the claims can be properly adjudicated. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. Pursuant to the Board's remand, VA examinations and medical opinions were obtained to determine the etiology of the Veteran's back, right ankle, and right knee disabilities. However, the Board finds these opinions are inadequate. The Board notes that in September 2021 VA medical opinions, the examiner found that the Veteran's right knee, right ankle, and back disability were not related to service. In doing so, the examiner relied on the absence of complaints, treatment, or a diagnosis for either condition in service. Similarly, in an October 2021 medical opinion, a different VA examiner found that the Veteran's back, right knee, and right ankle were not related to service. This examiner also relied on the absence of treatment or a diagnosis in service. The Board notes, however, that the absence of treatment or a diagnosis in service does not preclude service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, contrary to the examiners' findings, the Veteran's military personnel records include a March 1970 physical profile which shows limitations to the Veteran's back and right lower extremity. Specifically, the profile noted the Veteran has defects of "low back pain, stress Rx right T1 Vert." Moreover, his "PUHLES" profile showed limitations in his lower extremity, and the profile specifically limited the Veteran from crawling, stooping, running, jumping, prolonged standing, or marching until his ortho [sic] appointment. The Board notes, however, that service treatment records (STRs) do not show any orthopedic records or follow-up treatment for the conditions. To that end, the Board observes that the Veteran's STRs appear to be incomplete. The only treatment records included in the STRs that have been associated with the record is the Veteran's entrance examination, while his physical profile and exit examination have been included in the Veteran's military personnel records. Aside from these, there are no other STRs of evidence. Based on these findings, the Board concludes a remand is warranted to obtain the Veteran's outstanding service treatment records, and to obtain adequate etiology opinions since the examiners did not consider the Veteran's documented back and lower extremity injuries in service. 4. Entitlement to service connection for skin cancer is remanded. In an August 2021 VA skin examination, the Veteran was diagnosed with unspecified malignant neoplasm of the skin. However, the examiner found that the condition was not related to service since there were no complaints, treatment, or a diagnosis in service. The examiner also found that presumptive service connection is not warranted since the Veteran's skin cancer did not develop to a compensable degree within the required time period to qualify for presumptive service connection. In an October 2021 medical opinion, a different VA examiner also found a negative nexus due to the absence of treatment records from active service showing a diagnosis for a skin disability. As noted above, the absence of treatment or a diagnosis in service does not preclude service connection. Furthermore, even if the Veteran's skin cancer did not occur during the one-year presumptive period or meet the list of diseases under 38 C.F.R. § 3.309 (e), service connection can still be granted when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1044 (1994). As such, the Board finds the opinions are inadequate and remand is warranted. 5. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. In an August 2021 VA medical opinion, the examiner found that the Veteran did not have a diagnosis of PTSD. Alternatively, the examiner diagnosed the Veteran with persistent depressive disorder, but found that the condition was not related to service. Similarly, in a November 2021 medical opinion, a different VA examiner found that the Veteran did not have a diagnosed mental health condition. Initially, the Board notes that the Veteran's psychiatric claim has been expanded to include any diagnosed psychiatric disorder given the Veteran's diagnoses of depression found in VA treatment records and persistent depressive disorder as noted above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, the Board finds the opinions are inadequate for adjudicating the Veteran's claim. In this regard, the Board notes that while the November 2021 examiner did not find a diagnosed mental disorder, the examiner did not consider or attempt to reconcile the Veteran's diagnosed depressive disorder when rendering her opinion. Moreover, the Board observes the Veteran's exit examination where he reported "frequent trouble sleeping;" however, this symptom was not considered in determining the nature or etiology of the Veteran's current psychiatric disorder. Furthermore, since the August 2021 examiner seems to suggest the Veteran's depressive disorder may have been caused by the Veteran's skin cancer, the Board finds the Veteran's psychiatric claim is inextricably intertwined with his claim of service connection for skin cancer. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, remand is warranted. The Board also notes that the examiner seems to suggest the Veteran's depressive disorder may also be due to the Veteran's diabetes. As the Veteran has a pending claim for diabetes mellitus, the claim is inextricably intertwined with service connection for diabetes mellitus. See April 2021 Rating Decision. The matters are REMANDED for the following action: 1. Attempt to obtain any outstanding service treatment records. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. Efforts to obtain these records must continue until it is reasonably certain that they do not exist or that further efforts would be futile. 2. Obtain any outstanding VA treatment records and associate them with the claims folder. 3. After completion of the above development, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's back, right knee, and right ankle disabilities. The claims folder, including a copy of this remand and all lay statements of record, should be made available to the examiner. The examiner should provide an opinion as to the following: BACK: Opine whether it is at least as likely as not (50 percent probability or greater) the Veteran's back disability was incurred in service or is otherwise related to active-duty service and explain why or why not. RIGHT ANKLE: Opine whether it is at least as likely as not (50 percent probability or greater) the Veteran's right ankle disability was incurred in service or is otherwise related to active-duty service and explain why or why not. RIGHT KNEE: Opine whether it is at least as likely as not (50 percent probability or greater) the Veteran's right knee disability was incurred in service or is otherwise related to active-duty service and explain why or why not. The examiner should consider and address the following: The Veteran's military personnel records include a March 1970 physical profile which shows limitations to the Veteran's back and right lower extremity. Specifically, the profile noted the Veteran has defects of "low back pain, stress Rx right T1 Vert." Moreover, his "PUHLES" profile showed limitations in his lower extremity, and the profile specifically limited the Veteran from crawling, stooping, running, jumping, prolonged standing, or marching until his ortho [sic] appointment. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology, should be considered in formulating any opinion. 4. Schedule the Veteran for a VA examination with a qualified clinician to determine the nature and etiology of the Veteran's skin disability. The claims folder, including a copy of this remand and all lay statements of record, should be made available to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran's skin disability was incurred in service, or is otherwise related to active duty service, to include herbicide exposure. The examiner is advised that the absence of treatment or a diagnosis in service cannot serve as the sole basis for a negative finding. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should so state and provide reasoning as to why an opinion is not possible. 5. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his psychiatric disorder. The Veteran's claims file must be provided to the examiner for review. All appropriate testing should be performed. After review of the record and examination: a) The examiner should first identify all current psychiatric disorders found to be present. If the examiner finds no psychiatric condition present, the examiner must reconcile this finding with the prior diagnoses of depressive disorder in the record. b) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not related to a verified stressor and explain why or why not. c) If any psychiatric disorder other than PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder was incurred in service or is otherwise related to any injury, disease, or event incurred in service and explain why or why not. (d) The examiner should also provide an opinion as to whether any identified psychiatric disorder was proximately caused or aggravated by a service-connected disability and explain why or why not. The examiner must consider the fact that the Veteran reported trouble sleeping at his separation examination when rendering his or her opinion. 6. The AOJ should ensure that the examination reports comply with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 7. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.