Citation Nr: A25035291 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 220928-281153 DATE: April 16, 2025 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for bilateral leg conditions is remanded. REASONS FOR REMAND The Veteran had active service from September 1974 to December 1974. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b); 38 C.F.R. § 20.800(c). This matter is on appeal from an August 2022 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which adjudicated the issues based on the evidence of record at the time of the decision. The Veteran subsequently filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) in September 2022 in which the Veteran elected the Evidence Submission option. Accordingly, this decision has been written consistent with the Appeals Modernization Act (AMA) framework. In this case, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, which is dated August 11, 2022, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. See 38 C.F.R. § 20.303. If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in its decision. Id. However, as the Board is remanding these issues, any evidence that was added to the claims file that the Board could not consider in this decision will be reviewed by the AOJ in the adjudication of the claim. See 38 C.F.R. § 3.103(c)(2)(ii). Initially, the Board notes that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009); Browkowski v. Shinseki, 23 Vet. App. 79 (2009); see also Grimes v. McDonough, 34 Vet. App. 84 (2021) (holding that "a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream"). In light of Clemons and Browkowski, the Board has recharacterized the issues on appeal as reflected above. Id. As will be discussed in greater detail below, the Board finds that remand is warranted. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. The reasons follow. Duty to Assist VA's duty to assist includes obtaining pertinent federal records in possession of SSA when those records are potentially relevant to the claims on appeal. See, 38?C.F.R. § 3.159(c)(2); see also, Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Baker v. West, 11 Vet. App. 163 (1998). Notations within the Veteran's treatment records indicate that he is in receipt of disability benefits through the Social Security Administration (SSA). See June 2022 CAPRI. However, the Veteran's claims file is devoid of any records pertaining to the Veteran's SSA disability claim. The Board therefore finds that the AOJ's failure to obtain potentially relevant records in possession of SSA to be a pre-decisional error in the duty to assist that must be corrected on remand. See 38?C.F.R. §?20.802(a). On remand, the AOJ should therefore inquire as to whether there are any outstanding, relevant SSA records pertaining to the Veteran. Additionally, VA is required to assist Veteran's in obtaining evidence, including relevant treatment records, to substantiate their claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). The Veteran's VA treatment records include notations which indicate that he has also received private treatment for his various medical conditions. See June 2022 CAPRI. However, the Veteran's claims file is devoid of any private treatment records. Moreover, the evidence of record does not reflect that attempts were made to assist the Veteran in obtaining such documents. The Board therefore finds that the AOJ's failure to assist the Veteran in obtaining potentially relevant private treatment records constitutes a pre-decisional error in the duty to assist that must be corrected on remand. See 38?C.F.R. §?20.802(a). On remand, the AOJ should therefore assist the Veteran in associating with the claims file any relevant outstanding treatment records. Finally, the Board notes that VA's duty to assist includes providing a medical examination and medical opinion when it is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of a disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends he is entitled to service connection for an acquired psychiatric disability. Specifically, the Veteran asserts that his acquired psychiatric disorder is proximately related to his active service. Upon review of the record, the Board finds that the claim must be remanded. As to evidence of a diagnosed disability or symptoms of a disability, the Veteran's treatment records include complaints of, and treatment for, various acquired psychiatric disorders including major depressive disorder, generalized anxiety disorder, chronic insomnia, and anxiety state. See June 2022 CAPRI. Accordingly, the Board finds that the first element of McLendon, a diagnosed disability or symptoms of disability, has been met. As to an in-service event, injury, or disease, the Veteran asserts that during his active service he experienced "stress" due to "getting ready for combat" in Vietnam. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation). The Board notes that the Veteran is competent to report on the specific and unique circumstances of his service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the Veteran's medical records indicate that many years prior to this claim he reported to his treating physicians that "around the time he entered the service" he was hit in "the back of the head with a lead pipe" which "knocked him unconscious." June 2022 CAPRI. Accordingly, the Board finds that the second element of McLendon is met. As noted above, the threshold for determining whether evidence indicates that there may be a nexus between a current disability and an in-service event, injury, or disease is a low one. See McLendon, 20 Vet. App. at 83. The Veteran has plausibly asserted that his acquired psychiatric disorders are proximately related to his active service. The Board therefore finds that the AOJ's failure to obtain an examination assessing the nature and etiology of the Veteran's acquired psychiatric disorder prior to adjudicating the claim to be a pre-decisional error in the duty to assist that must be corrected on remand. See 38?C.F.R. §?20.802(a). Accordingly, remand is warranted in order to obtain a VA examination to determine if there is a causal relationship between any current acquired psychiatric disability and his active service. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends he is entitled to service connection for bilateral hearing loss. Specifically, the Veteran asserts that his hearing loss is proximately related to his active service. Upon review of the record, the Board finds that the claim must be remanded. As to symptoms of a disability, by virtue of filing a claim for service connection for hearing loss, as well as the submission of the notice of disagreement which gave rise to this appeal, it is implied that the Veteran believes he has symptoms of a hearing loss disability. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation); September 2022 VA Form 10182 Notice of Disagreement. The Veteran is competent to describe those symptoms which are observable to a lay person. See Jandreau, 492 F.3d 1at 1377. Accordingly, the Board finds that the first element of McLendon, a diagnosed disability or symptoms of disability, has been met. As to an in-service event, injury, or disease, the Veteran asserts that during his active service he was exposed to "noise" due to his duties as a "gunner." See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation). The Board again notes that the Veteran is competent to report on the specific and unique circumstances of his service. See Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. Accordingly, the Board finds that the second element of McLendon is met. As discussed above, the threshold for determining whether evidence indicates that there may be a nexus between a current disability and an in-service event, injury, or disease is a low one. See McLendon, 20 Vet. App. at 83. The Veteran has plausibly asserted that he experiences hearing loss which is proximately related to his active service. The Board therefore finds that the AOJ's failure to obtain an examination assessing the nature and etiology of the Veteran's hearing loss prior to adjudicating the claim to be a pre-decisional error in the duty to assist that must be corrected on remand. See 38?C.F.R. §?20.802(a). Accordingly, remand is warranted in order to obtain a VA examination to determine if there is a causal relationship between any current hearing loss disability and his active service. 3. Entitlement to service connection for a back condition is remanded. The Veteran contends he is entitled to service connection for a back disability. Specifically, the Veteran asserts that his back condition is proximately related to his active service. Upon review of the record, the Board finds that the claim must be remanded. As to evidence of a diagnosed disability or symptoms of a disability, the Veteran's treatment records include multiple complaints of, and treatment for, low back pain including diagnoses of spinal fractures, central canal stenosis, small diffuse disk bulging, bilateral neural foraminal encroachment, ligamentum flavum hypertrophy, and facet osteoarthritis. See June 2022 CAPRI. Accordingly, the Board finds that the first element of McLendon, a diagnosed disability or symptoms of disability, has been met. As to an in-service event, injury, or disease, the Veteran asserts that as part of his duties during his active service he was required to perform heavy lifting, including carrying ammunition. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation). The Board reiterates that the Veteran is competent to report on the specific and unique circumstances of his service. See Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. Accordingly, the Board finds that the second element of McLendon is met. As noted above, the threshold for determining whether evidence indicates that there may be a nexus between a current disability and an in-service event, injury, or disease is a low one. See McLendon, 20 Vet. App. at 83. The Veteran has plausibly asserted that his back conditions are proximately related to his active service. The Board therefore finds that the AOJ's failure to obtain an examination assessing the nature and etiology of the Veteran's back conditions prior to adjudicating the claim to be a pre-decisional error in the duty to assist that must be corrected on remand. See 38?C.F.R. §?20.802(a). Accordingly, remand is warranted in order to obtain a VA examination to determine if there is a causal relationship between any current back disability and his active service. 4. Entitlement to service connection for bilateral leg conditions is remanded. The Veteran contends he is entitled to service connection for bilateral leg disabilities. Specifically, the Veteran asserts that his bilateral leg disabilities are proximately related to his active service. In addition, or in the alternative, the Veteran contends that his leg disabilities were caused or aggravated by his back conditions. Upon review of the record, the Board finds that the claim must be remanded. As to evidence of a diagnosed disability or symptoms of a disability, the Veteran's treatment records include multiple complaints of, and treatment for, "pain in joint involving lower leg" as well as "locking" of his legs. See June 2022 CAPRI. Additionally, the medical evidence of record indicates that the Veteran suffers from radiating pain, numbness, tingling, burning, and weakness of his legs bilaterally. Id. Accordingly, the Board finds that the first element of McLendon, a diagnosed disability or symptoms of disability, has been met. As to an in-service event, injury, or disease, the Veteran asserts that as part of his duties during his active service he was required to perform heavy lifting, including carrying ammunition. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation). The Board reiterates that the Veteran is competent to report on the specific and unique circumstances of his service. See Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. Accordingly, the Board finds that the second element of McLendon is met. As noted above, the threshold for determining whether evidence indicates that there may be a nexus between a current disability and an in-service event, injury, or disease is a low one. See McLendon, 20 Vet. App. at 83. The Veteran has plausibly asserted that his bilateral leg conditions are proximately related to his active service. The Board therefore finds that the AOJ's failure to obtain an examination assessing the nature and etiology of the Veteran's leg conditions prior to adjudicating the claim to be a pre-decisional error in the duty to assist that must be corrected on remand. See 38?C.F.R. §?20.802(a). Accordingly, remand is warranted in order to obtain a VA examination to determine if there is a causal relationship between any current leg disability and his active service. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file any relevant outstanding treatment records. 2. Contact SSA to request copies of any records in its possession pertaining to the Veteran's application for SSA disability benefits, to include any underlying medical records. Efforts to obtain these records should be documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain it would be futile. See 38 C.F.R. § 3.159(c)(2). If any of the records sought are determined to be unavailable, the Veteran should be notified. 3. Schedule the Veteran for a VA examination with the appropriate medical examiner to determine the nature and etiology of any current acquired psychiatric disability. Following a review of the complete claims file, including, but not limited to the evidence discussed above, the examiner is asked to opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any current acquire psychiatric disability had its onset during active service or is otherwise related to the Veteran's period of active service from September 1974 to December 1974. In so doing, the examiner must also address the Veteran's contention that his acquired psychiatric disorders are proximately related to the stress he experienced in preparation for his participation in combat. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation), p. 9. The examiner must also address the Veteran's report of head trauma during his active service. See June 2022 CAPRI, pp. 167, 195. In addition, the examiner must address the various complaints of, and treatments for, psychiatric disorders in the Veteran's treatment records including posttraumatic stress disorder, major depressive disorder, generalized anxiety disorder, chronic insomnia, and anxiety state. See June 2022 CAPRI, pp. 57, 63, 66, 121, 126, 132, 149; September 2022 Medical Treatment Record - Non-Government Facility, p. 1. Please explain upon what facts, medical principles, and/or medical literature the opinion is based. All tests and studies deemed necessary by the examiner should be performed. 4. Schedule the Veteran for a VA examination with the appropriate medical examiner to determine the nature and etiology of any current hearing loss disability. Following a review of the complete claims file, including, but not limited to the evidence discussed above, the examiner is asked to opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any current hearing loss disability had its onset during active service or is otherwise related to the Veteran's period of active service from September 1974 to December 1974. In so doing, the examiner must also address the Veteran's contention that his hearing loss is proximately related to his exposure to noise as part of his duties during active service. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation), p. 9. Please explain upon what facts, medical principles, and/or medical literature the opinion is based. All tests and studies deemed necessary by the examiner should be performed. 5. Schedule the Veteran for a VA examination with the appropriate medical examiner to determine the nature and etiology of any current back disability. Following a review of the complete claims file, including, but not limited to the evidence discussed above, the examiner is asked to opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any current back disability had its onset during active service or is otherwise related to the Veteran's period of active service from September 1974 to December 1974. In so doing, the examiner must also address the Veteran's contention that his back conditions are proximately related to the heavy lifting and carrying required as part of his duties during active service. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation), p. 9. In addition, the examiner must address the various complaints of, and treatments for, low back pain, including the diagnoses of spinal fractures, central canal stenosis, small diffuse disk bulging, bilateral neural foraminal encroachment, ligamentum flavum hypertrophy, and facet osteoarthritis, as documented in the Veteran's treatment records. See June 2022 CAPRI, pp. 1, 3, 62-63, 121, 126, 132, 149, 174; September 2022 Medical Treatment Record - Non-Government Facility, p. 3. Please explain upon what facts, medical principles, and/or medical literature the opinion is based. All tests and studies deemed necessary by the examiner should be performed. 6. Schedule the Veteran for a VA examination with the appropriate medical examiner to determine the nature and etiology of any current leg disability. Following a review of the complete claims file, including, but not limited to the evidence discussed above, the examiner is asked to opine on the following: (a.) whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any current leg condition had its onset during active service or is otherwise related to the Veteran's period of active service between September 1974 to December 1974, and; (b.) whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any current leg condition was caused or aggravated by another disability, to specifically include any back disabilities. In so doing, the examiner must also address the Veteran's contention that his leg conditions are proximately related to the heavy lifting and carrying the Veteran was required to perform as part of his duties during active service. See May 2022 VA 21-526EZ, Fully Developed Claim (Compensation), p. 9. In addition, the examiner must address the various complaints of, and treatments for, joint pain involving the Veteran's lower legs. See June 2022 CAPRI, p. 2. Likewise, the examiner must address the reported locking, numbness, weakness, tingling, burning, and radiating pain as documented in the Veteran's treatment records. See June 2022 CAPRI, pp. 59, 62, 77, 170, 174. Please explain upon what facts, medical principles, and/or medical literature the opinion is based. All tests and studies deemed necessary by the examiner should be performed. In providing these opinions the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner is further advised that aggravation means any incremental increase in disability in nonservice-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Doyle, Stephan C. 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.