Citation Nr: 23018751 Decision Date: 03/27/23 Archive Date: 03/27/23 DOCKET NO. 19-08 787A DATE: March 27, 2023 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a lower back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1997 to November 2001 and March 2003 to July 2003. For his meritorious service, the Veteran was awarded (among other decorations) the Navy Achievement Medal. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2018 and August 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during an August 2022 virtual hearing. A transcript of this proceeding has been associated with the record. Upon the evidence of record, the appeals have been expanded as set forth herein. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In September 2018, the Veteran requested to reopen a service connection claim for front tooth reconstruction on the basis of new and material evidence. This claim was acknowledged in an October 2018 development letter, but no subsequent action has been taken. As this issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Turning to the instant matters, additional development is necessary prior to the adjudication of these appeals. First, during the August 2022 hearing, the Veteran identified outstanding treatment records which may be relevant to the pending appeals, including in-service records from Camp Pendleton and post-service records from a substance abuse facility. Reasonable efforts to obtain this evidence must be undertaken. Further, VA back and psychiatric examinations are needed. Notably, a July 2018 VA back opinion is inadequate for its failure to consider the Veteran's testimony regarding an in-service injury and the chronicity of his pain since service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran has not been provided with a VA psychiatric examination to date, despite competent evidence of a current disorder and a potential nexus to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Remand for adequate examinations is required. Finally, the Board notes that the February 2019 Statement of the Case (SOC) addressing the pending psychiatric claim was returned as undeliverable, despite being sent to the accurate and current address of record. The Veteran has not confirmed that he did not receive a copy of this document or requested that an additional copy be provided to him. However, to ensure that the Veteran has had the opportunity to review this SOC, an additional copy should be mailed to him on remand. The matters are REMANDED for the following actions: 1. Confirm the Veteran's current address. Thereafter, send him an additional copy of the February 2019 SOC addressing the pending psychiatric claim. Inform the Veteran that his VA Form 9 for this matter has been accepted and the matter remains on appeal; thus, no further action is required from him at this time. 2. Obtain and associate with the claims file a complete copy of the Veteran's service treatment records from Camp Pendleton regarding his lower back. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. Request that the Veteran provide authorization for the release of all private treatment records pertaining to the claimed psychiatric disorder, including from a substance abuse facility. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. If possible, the Veteran should attempt to obtain the records himself. 4. Schedule the Veteran for examinations to assess the etiology of his claimed back and psychiatric disorders. The claims file and a copy of this remand must be made available for review. In particular, each examiner is asked to offer medical opinions as to: (a.) Identify all current back/psychiatric disorders shown by the Veteran during the period on appeal. As to the back examination, if a diagnosis of arthritis is rendered, the examiner must explicitly indicate if this condition onset within one year of military separation. Regarding the psychiatric examination, a diagnosis of posttraumatic stress disorder (PTSD) must be offered in accordance with VA regulations. (b.) For each current disorder, opine whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service. The back examiner must address the Veteran's testimony of a back injury during service, with chronic symptoms since that time; and, notation of a back disorder on his separation examination. The psychiatric examiner must address the Veteran's reports that his symptoms onset during service, and are partly related to being separated from his family during service. Consistent with Lynch v. McDonough, 21 F.4th 776, 781-82 (2021), the examiner is advised that the term "at least as likely as not" means that the likelihood is at least approximately balanced or nearly equal, if not higher. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.