Citation Nr: 22018269 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-00 053 DATE: March 28, 2022 REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include borderline personality disorder and bipolar II disorder, is remanded. REASONS FOR REMAND The Veteran had active duty service in the U.S. Army from January 2003 to August 2003 and from January 2007 to June 2012. 1. Entitlement to service connection for a low back condition is remanded. The Veteran contends that he has had a low back condition since his military service. The Veteran stated that, while in service, he had to carry a 60 pound rucksack and heavy weaponry during marches. See October 2021 hearing transcript. He also stated that he did not seek treatment for his low back condition while in service as he was not aware of the severity of his low back condition. Id. At the outset, the Board notes that the Veteran's VA treatment records note ongoing complaints of low back pain. The record shows that no VA examination or medical opinion has been obtained in connection with the above service connection claim on appeal. As previously discussed, in addition to the Veteran's lay statements, VA treatment records note ongoing complaints of low back pain. The Board finds that this evidence meets the low threshold as set forth in McLendon to secure a VA medical opinion related to these claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, a remand is warranted to obtain a VA medical opinion to determine the nature and etiology of the Veteran's low back condition. In addition, the Board also notes that the Veteran testified that he previously sought treatment from a chiropractor who believed his back issues were due to carrying heavy loads while in service. However, there is no evidence of private treatment for the Veteran's low back condition since service, to include treatment from a private chiropractor, in the evidence of record. Accordingly, a remand is also warranted to attempt to obtain any outstanding medical records. 2. Entitlement to service connection for an acquired psychiatric disorder, to include borderline personality disorder and bipolar II disorder, is remanded. The Veteran contends that he has an acquired psychiatric disorder that was aggravated by his military service. At the outset, the Board notes that the Veteran has diagnoses of borderline personality disorder and bipolar II disorder in partial remission. See February 2017 VA examination. The Veteran acknowledges that he had an acquired psychiatric disorder that preexisted military service. See, e.g., December 2017 VA Form 9; see also October 2021 hearing transcript. In February 2017, the VA examiner concluded that the Veteran's acquired psychiatric disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran has a primary diagnosis of borderline personality disorder. He was treated for symptoms of borderline personality disorder prior to joining the Army. The examiner noted that he signed a waiver secondary to pre-military suicidal ideation and mental health treatment. By definition from the DSM-5, the examiner noted that a personality disorder "is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, and is stable over time." Personality disorders usually start in adolescence, and this is verified by the Veteran's treatment for suicidal ideation prior to joining the Army. As the Veteran had borderline personality disorder prior to joining the Army, the examiner noted that the extent of his disorder and symptoms of the disorder would occur irrespective to service in the military. The examiner also noted that his bipolar disorder is currently in remission. Many symptoms of bipolar disorder, depressive disorder, and anxiety disorder that the Veteran has presented with over his lifetime are secondary to his diagnosis of borderline personality disorder. The examiner concluded that it is therefore less likely as not that the Veteran's treatment for borderline personality disorder was incurred by or exacerbated by service in the US Army. The Board finds the February 2017 VA opinion inadequate, as the VA examiner did not address all the evidence in the record. The examiner did not acknowledge the Veteran's January 2012 hospital discharge notes which indicate that he made a suicidal gesture once at 16 years of age but had no other history of suicidal ideation until he presented with suicidal statements in January 2012. However, subsequent to the February 2017 VA examination, the Veteran also testified that he was an exemplary soldier prior to his deployment in Afghanistan. See October 2021 Hearing Transcript. However, following his return, he made two suicide attempts and received mental health treatment. Id. As the examiner did not discuss the Veteran's October 2021 testimony, a remand is necessary to obtain an adequate opinion that addresses the nature and etiology of the Veteran's acquired psychiatric disorders that take into account all of the Veteran's lay statements. The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization. 2. LOW BACK: Then, schedule the Veteran for a VA examination for his low back condition. The examiner must be provided with the file for review. a. Identify all low back diagnoses. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. b. For each diagnosed low back disability, the examiner is asked to provide a response to the following: Is it at least as likely as not (fifty percent or greater probability) that the low back disability is related to his active service, including carrying heavy rucksacks and weaponry while marching, and explain why or why not? The examiner must consider the Veteran's statements that he has had issues with his back since service. 3. ACQUIRED PSYCHIATRIC DISORDER: Then, obtain a VA opinion from an appropriate clinician for his acquired psychiatric disorders. The file must be provided to the examiner for review. For each diagnosed acquired psychiatric disorder, to include borderline personality disorder and bipolar II disorder, the examiner is asked to provide a response to the following: a. Did the Veteran's acquired psychiatric disorder clearly and unmistakably (undebatable) preexist the Veteran's service and explain why or why not? b. If the examiner finds that the Veteran's acquired psychiatric disorder did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service and explain why or why not? In providing the rationale for his/her conclusions, with respect to aggravation, the examiner is requested to address the January 2012 hospital discharge notes that indicate that the Veteran made a suicidal gesture once at 16 years of age but had no other history of suicidal ideation until he presented with suicidal statements in January 2012. The examiner is also requested to address the Veteran's October 2021 testimony, specifically his testimony that he was an exemplary soldier prior to his deployment in Afghanistan. However, following his return, he made two suicide attempts and received mental health treatment. c. If the examiner finds that the Veteran's acquired psychiatric disorder either did not clearly and unmistakably preexist service or was aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including the Veteran's deployment in Afghanistan, and explain why or why not. (Continued on next page) 3. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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