Citation Nr: 22017706 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-29 434 DATE: March 25, 2022 REMANDED The claim of entitlement to service connection for a low back disorder is remanded. The claim of entitlement to service connection for a neck disorder is remanded. The claim of entitlement to service connection for peripheral neuropathy of the lower extremities is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active service from July 1979 to August 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at Virtual Board hearing in October 2021. A transcript of this proceeding has been associated with the claims file. 1. The claims of entitlement to service connection for low back and neck disorders are remanded. The Veteran contends that service connection is warranted for low back and neck disorders. Specifically, he contends that while stationed in Fort Ord, California in either October or November 1979, he fell down a flight of stairs and injured both his back and neck. Unfortunately, as discussed in more detail below, the Veteran's service treatment records (STRs) have been determined to be unavailable. However, the Veteran has submitted an October 2021 statement from G.S., a fellow service member, that claims to have witnessed this fall. The Veteran has also submitted statements from both his wife and his mother indicating that the Veteran told them about this injury shortly after it occurred and that he had been experiencing back and neck problems since this injury. Post-service private treatment records show that the Veteran sought treatment for pain in the left neck in approximately July 2009. A few weeks later, in August 2009, he was hospitalized and a magnetic resonance imaging (MRI) scan of the lumbar spine revealed some degree of lumbar stenosis of a congenital nature but also evidence of a cervical spinal stenosis and the Veteran underwent cervical laminectomy. Subsequently, in February 2011 the Veteran underwent lumbar spine microdiskectomy based, at least in part, on complaints of back pain since September 2010. The Veteran submitted the current claim for service connection for low back and neck disorders in February 2018. In connection with this claim, he was afforded VA back and neck examinations in January 2019. Significantly, the examiner diagnosed both arthritis and intervertebral disc syndrome (IVDS) of both the neck and spine and opined that it was less likely than not that such were related to his military service. As rationale for this opinion, the examiner noted that, during service, the conditions were acute only and that there was no evidence of chronicity of care. During the October 2021 Board hearing, the Veteran reiterated his previous contentions that he fell down a flight of stairs and injured both his back and neck during his service. The Veteran also testified that he was given a medical profile due to this injury, was taken off the boxing team, and has continued to experience back and neck pain since his discharge from service. Unfortunately, the Board finds that the January 2019 VA medical opinions are inadequate as the examiner did not address the competent allegations of back and neck symptoms since the Veteran's military service from the Veteran, his mother, and his wife. As such, addendum medical opinions should be obtained. 2. The claim of entitlement to service connection for peripheral neuropathy of the lower extremities is remanded. The Veteran contends that he experiences peripheral neuropathy of the lower extremities secondary to his low back disorder and a January 2019 VA spine examination confirms that the Veteran has radiculopathy of the lower extremities due to IVDS. As above, the Board has remanded the issue of entitlement to service connection for a low back disorder for additional development. As such, the Veteran's claim for service connection for peripheral neuropathy of the lower extremities is inextricably intertwined with the remanded low back disorder issue and a final decision regarding these issues cannot be rendered at this time. See Harris v. Derwinski, 1Vet. App.180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 3. The claim of entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that service connection is warranted for an acquired psychiatric disorder. Specifically, during the October 2021 Board hearing, he testified that he began experiencing psychiatric problems during his service due to stressful experiences, including an incident regarding Iranian hostages in 1979, as well as being separated from his family. These psychiatric problems first manifested by performance problems (he was almost discharged due to insubordination) and were later self-treated with drugs and alcohol. In support of this contention, the Veteran has submitted several statements dated in August 2018 from his mother, wife, daughter, and friends noting psychiatric problems since the Veteran's military service. Unfortunately, as above, the Veteran's STRs have been determined to be unavailable. However, the Veteran has statements from both his wife and his mother indicating that the Veteran began experiencing psychiatric problems during his service which have continued to the present. Post-service VA treatment records show complaints of depression as early as October 2017 and an August 2018 VA treatment record shows an impression of addictive disorder with moderate cocaine use. The Veteran has not yet been afforded a VA examination for the purpose of determining whether a current acquired psychiatric disorder may be related to his military service. The medical evidence showing current depression along with the Veteran's allegation of psychiatric problems beginning and continuing since service are sufficient to trigger the duty on the part of VA to provide an examination as to this claim. Therefore, the Veteran should be afforded a VA examination so as to determine whether he currently has an acquired psychiatric disorder and, if so, the nature and etiology of such disorder. With regard to all four remanded issues, as above, the Veteran's STRs have been determined to be unavailable. Specifically, in August 2018 correspondence, it was noted that there were no STRs documenting medical care with the exception of dental records. The Board observes that when records in the possession of the government are unavailable through no fault of the Veteran, VA has a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the Board finds that there are deficiencies in the development of the case. Significantly, a review of the claims file shows PIES (Personnel Information Exchange System) requests dated in March, April, and May 2018. However, there is no indication in the record that the agency of original jurisdiction (AOJ) attempted to contact any other potential repositories for the requested information, such as the VA Records Management Center (RMC) or Records Management and Declassification Agency (RMDA). Accordingly, on remand the AOJ should make as many requests as necessary to obtain the Veteran's STRs until the AOJ determines that either the records do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159. Also, with regard to all of the remanded issues, the Veteran should be provided with an opportunity to identify any VA or non-VA healthcare provider who has treated him for his claimed back, neck, peripheral neuropathy, and/or acquired psychiatric disorders since service. Also, there are likely outstanding VA treatment records as the Veteran has consistently sought treatment at VA since October 2017, but the most recent VA medical records in the claims file are dated in June 2020. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Contact any appropriate sources to obtain any STRs related to the Veteran's active duty service from July 1979 to August 1982. In making any request, clearly identify the source(s) contacted. All records and/or responses received should be associated with the claims file. 2. Afford the Veteran an opportunity to identify any healthcare provider who has treated him for his claimed back, neck, peripheral neuropathy, and/or acquired psychiatric disorders since service. After obtaining any necessary authorization from the Veteran, obtain all identified records, to include updated VA treatment records dated from June 2020 to the present. 3. After obtaining any outstanding records to the extent possible, obtain an opinion as to the etiology of the Veteran's claimed low back and neck disorders. Based on a review of the record, the examiner should provide opinions as to whether it is at least as likely not (50 percent probability or greater) that a current disability of either the low back or neck is caused by or is otherwise related to the Veteran's active duty service. In doing so, the examiner should address the following: (i) the Veteran's contention that while stationed in Fort Ord, California in either October or November 1979, he fell down a flight of stairs and injured both his back and neck along with an October 2021 statement from G.S., a fellow service member that claims to have witnessed this fall (see VBMS, documents labeled Correspondence, receipt date 2/28/2018, page 1 and Hearing Transcript, receipt date 10/20/2021, page 9); (ii) statements from the Veteran, his mother, and his wife indicating that the Veteran had been experiencing back and neck problems since this in-service injury (see VBMS, documents labeled Hearing Transcript, receipt date 10/20/2021, page 9; Buddy/Lay Statements, receipt date 2/28/2018, page 1) (iii) post-service private treatment records showing complaints of neck pain as early as July 2009 with cervical laminectomy in August 2009, MRI findings lumbar stenosis of a congenital nature as well as cervical spinal stenosis in August 2009, complaints of back pain as early as September 2010 with lumbar spine microdiskectomy in February 2011 (see VBMS, document labeled Medical Treatment Record Government Facility, receipt date 9/12/2018, page 1 and labeled Medical Treatment Record Non-Government Facility, receipt date 2/28/2018, pages 3 and 5); and (iv) the January 2019 VA back and neck examinations showing diagnoses of both arthritis and IVDS along with negative nexus opinions. (see VBMS, documents labeled C&P Exam (back and neck), receipt date 1/25/2019, pages 1 and 2). Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After obtaining any outstanding records to the extent possible, schedule the Veteran for a VA psychiatric examination by an appropriate medical professional to determine the nature and etiology of his claimed acquired psychiatric disorder. Based on the examination and review of the record, the examiner should: (A) Identify all current acquired psychiatric disorders found to be present during the appeal period beginning August 2018. (B) For each diagnosis of an acquired psychiatric disorder, the examiner should offer an opinion as to whether it is at least as likely not (50 percent probability or greater) that a current acquired psychiatric disorder is caused by or is otherwise related to the Veteran's active duty service. In doing so, the examiner should address the following: (i) the Veteran's contention that he began experiencing psychiatric problems during his service due to stressful experiences, including an incident regarding Iranian hostages in 1979, as well as being separated from his family and that these psychiatric problems first manifested by performance problems (he was almost discharged due to insubordination) and were later self-treated with drugs and alcohol. (see VBMS, document labeled Hearing Transcript, receipt date 10/20/2021, pages 3 - 5); (ii) statements dated in August 2018 from his mother, wife, daughter, and friends noting psychiatric problems since the Veteran's military service (see VBMS, documents labeled VA 21-4138 Statements in Support of Claim, receipt date 8/20/20181); and (iii) VA treatment records showing complaints of depression as early as October 2017 and an August 2018 VA treatment record shows an impression of addictive disorder with moderate cocaine use (see VBMS, document labeled CAPRI, receipt date 3/23/2018, page 57 and labeled CAPRI, receipt date 9/10/2018, page 109). Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.