Citation Nr: A25035143 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210413-152266 DATE: April 16, 2025 ORDER The August 2024 Board of Veterans' Appeals decision, which addressed the below-referenced appeals is vacated. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to a compensable disability rating for cervical annulus bulge, C5-6, with strain (hereinafter cervical spine disability) is remanded. Entitlement to a disability rating in excess of 10 percent for gastroenteritis is remanded. Entitlement to a disability rating in excess of 20 percent for kidney stones to include urinary tract infection with overactive bladder (hereinafter genitourinary disorder) is remanded. INTRODUCTION The Veteran had active service in the United States Air Force from December 2010 to March 2013. In an April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the March 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his attorney with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider that evidence in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the above-referenced claims, any evidence the Board could not consider will be considered by the AOJ in the readjudication of those claims. 38 C.F.R. § 3.103 (c)(2)(ii). ORDER TO VACATE The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. In this case, the Board issued a decision dismissing the above-noted issues on August 16, 2024. Briefly, the Board will recount the procedural posture of this case prior to that decision. In November 2019, the Regional Office (RO) issued a rating decision addressing the above-noted issues. A Higher-Level review was requested in November 2020, and a duty to assist error was discovered in a March 2021 rating decision. Later that month, the RO addressed those duty to assist errors in a supplemental rating decision. However, that rating decision was not associated with the Veteran's electronic claim file at the time the August 2024 Board decision was dispatched. Accordingly, to ensure due process, the August 16, 2024, Board decision addressing the above-noted issues, is vacated. The Board will now readjudicate the appeals in this decision. REASONS FOR REMAND Pursuant to 38 C.F.R. § 20.802, unless an issue on appeal can be granted in full, the Board shall remand the appeal to the agency of original jurisdiction for correction of an error on the part of the agency of original jurisdiction to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the date of the agency of original jurisdiction decision on appeal. The Board may remand for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. Under 38 C.F.R. § 3.159 the Department of Veterans Affairs must provide assistance in developing a veteran's claim. In particular, this regulation requires VA to, at times, obtain a VA examination or medical opinion. The Veteran submitted an intent to file a claim in November 2018, followed by a VA Form 21-526EZ, which raised the above-noted claims in September 2019. Thereafter, the RO submitted a request for examinations to assess the Veteran's service-connected genitourinary disorder, cervical spine disability, and gastroenteritis. In November 2019, the RO received notice that the Veteran had failed to respond to a request to schedule his examinations. Following notification from the examination scheduling facility that the Veteran did not schedule his examinations, the RO denied his claims in a November 2019 rating decision. There is no indication the RO conducted even basic telephone development to attempt to schedule the Veteran for his appointments. The Board finds the limited assistance provided to the Veteran in this case falls far below that required under 38 C.F.R. § 3.159. As such, the Board finds a remand is necessary to correct the error on the part of the RO to satisfy its duties under 38 U.S.C. § 5103A. Further, the Board observes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). Prior to the November 2019 adjudication of his claims, the Veteran was not afforded a VA examination with respect to his claims of acquired psychiatric and sleep disorders. A review of his service treatment records (STRs) does indicate he was treated for an adjustment disorder with mixed mood and cognitive disorder while on active duty. The Veteran also provided the results of a private psychiatric assessment, which was conducted in January 2021 in support of his appeal. Following her examination, the Veteran's private psychologist determined the Veteran warranted a diagnosis of depression with associated sleep disturbances, which she concluded was incurred in service and aggravated by his service-connected disabilities. His psychologist went on to conclude his condition has existed from the date his claim was filed in September 2019, and was severe enough to prevent him from gainful employment. However, in reviewing the Veteran's treatment notes from University of Texas Health, the Board observes the Veteran reported he had experienced mental disorder manifestations since he was a teenager. In particular, the Veteran stated he was diagnosed with an anxiety disorder as a teen and was treated with Depakote. However, the Veteran denied having ever seen a psychiatric professional in a March 2010 pre-enlistment medical screening. He again denied ever having psychiatric problems such as trouble sleeping, anxiety, nervous trouble, or depression during a February 2011 in-service examination. Given the Veteran's very fact-based reports of having experienced a psychiatric disorder prior to service, which required medication, the Board finds the opinion provided by his treating psychologist to be questionable. Nonetheless, the Veteran was treated for an acquired psychiatric disorder both in, and since service. Therefore, the Board has determined the failure to obtain a VA examination and medical opinions addressing these issues constituted a pre-decisional duty to assist error. Accordingly, this case is REMANDED for the following actions: 1. Contact the Veteran via letter and telephone contact documented by way of a VA Form 21-0820 to determine whether he is ready, willing, and able to report for his VA examinations deemed necessary prior to final adjudication of his above-noted appeals. 2. If so, obtain a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected gastrointestinal disorder, cervical spine disability, and gastroenteritis. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 3. Additionally, obtain a VA examination by a VA psychiatrist or psychologist to determine the etiology of all acquired psychiatric disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the review of the Veteran's pertinent history and the examination results, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. The examiner should answer the following questions with respect to each psychiatric disorder present during the period of the claim. a) did the disorder clearly and unmistakably pre-exist the Veteran's entry into active service? b) if the examiner concludes any current acquired psychiatric disorder did clearly and unmistakably pre-exist the Veteran's entry into active service, did the disorder clearly and unmistakably undergo no chronic increase in severity during active duty service? and c) if the examiner concludes any current acquired psychiatric disorder did not clearly and unmistakably pre-exist the Veteran's entry into active service, the examiner is asked to state whether it is at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) that such disorder originated in service or is otherwise etiologically related to service? The examiner is also asked to state whether any psychiatric disorder present during the period of the claim was at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher): d) caused by his service-connected disabilities; or e) worsened to any degree by his service-connected disabilities. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent reports relative to his psychiatric manifestations. If the examiner finds the Veteran's disability clearly and unmistakably existed, but clearly and unmistakably was not aggravated during active service, the examiner should state the specific evidence used in forming this opinion. For these opinions, the examiner should note veterans are generally competent to attest to factual matters of which they have first-hand knowledge, including events and symptoms. The examiner is asked to consider and expressly discuss the Veteran's reports relative to the etiology of the claimed disability. If the examiner finds any reports provided by the Veteran to lack reliability, the examiner should state why. Additionally, the examiner is asked to consider and expressly discuss the Veteran's January 2016 treatment note from the University of Texas Health, wherein the Veteran stated he was diagnosed with an anxiety disorder as a teen, and was treated with Depakote. The examiner should also consider and discuss the March 2010 pre-enlistment medical screening and February 2011 examination, wherein the Veteran denied ever having psychiatric problems such as trouble sleeping, anxiety, nervous trouble, or depression. Further, the examiner should consider and discuss the Veteran's February 2013 treatment notes from the Palo Alto VAMC demonstrating an in-service diagnosis of adjustment and cognitive disorders, as well as his January 2021 private psychiatric assessment. (Continued on the next page) ? A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fraser, Gordon 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.