Citation Nr: 18154212
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 10-42 707
DATE:	November 29, 2018
REMANDED
1.  Entitlement to service connection for a degenerative bone disease is remanded.
2.  Entitlement to service connection for a low back disability is remanded.
3.  Entitlement to service connection for a variously diagnosed psychiatric disability is remanded.
REASONS FOR REMAND
The appellant is a Veteran who served in the Army Reserve and had active duty for training (ACDUTRA) from October 24, 1989 to March 20, 1990 and active duty from January 17, 1991 to March 28, 1991.  This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 Department of Veterans Affairs (VA) rating decision.  In January 2012, a Travel Board hearing was held before the undersigned.  In August 2012, the case was remanded to the RO for additional development.  
A November 2016 Board decision, in pertinent part, denied service connection for degenerative bone disease, a low back disability, and a variously diagnosed psychiatric disability.  The Veteran appealed the Board’s decision as to those three claim denials to the United States Court of Appeals for Veterans Claims (CAVC), which in a March 2018 Memorandum Decision, set aside the Board’s November 2016 decision as to those three claims and remanded the matters to the Board for further adjudication.    
Disabled American Veterans (DAV) submitted argument in support of the Veteran’s claim in November 2018.  Formerly, the Veteran had appointed DAV to be his representative in March 2015; however, in an April 2016 statement he requested that DAV be removed as his power of attorney.  The RO acknowledged his request in an April 2016 letter.  He has not appointed a new representative, and as such is unrepresented.  
1. , 2., and 3.  Entitlement to service connection for a degenerative bone disease, a low back disability, and a variously diagnosed psychiatric disability is remanded.
In its March 2018 Memorandum Decision, the CAVC found that the Board provided an inadequate statement of reasons or bases for its finding that medical examinations were not needed to address the three claimed disabilities, considering certain evidence of record.  Regarding the degenerative bone disease and low back disabilities, the CAVC observed that the Veteran had asserted he was involved in a motor vehicle accident during service and that his in-service duties included “heavy lifting.”  There was also a report by the Veteran that he had a low back problem during service and suffered chronic back pain, and a private therapeutic massage report in April 2013 noted he had scar tissue in his lower back that may be from an old injury.  Regarding a psychiatric disability, the Veteran reported that he was verbally abused and exposed to stressful events during service and has had psychological problems ever since.  
On reconsideration of the evidence, the Board finds that further development of medical evidence (by arranging for an examination to secure a medical opinion in these matters) is necessary.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  
The matters are REMANDED for the following:
1.  Associate with the claims file all VA records of evaluation and treatment of the Veteran for the claimed disabilities since December 2015.  
2.  Arrange for appropriate orthopedic and psychiatric examinations of the Veteran to determine the nature and likely etiology of any claimed bone disease, low back disability, and psychiatric disability.  The Veteran’s claims file must be reviewed by the examiners in connection with the examinations.  Upon review of the record and examination of the Veteran, the consulting clinicians should respond to the following:  
Regarding the claimed degenerative bone disease and low back disability, the orthopedic examiner should (a) identify each bone disease (if any) and low back disability entity found or shown by the record since the Veteran filed his claim in June 2009; and (b) identify the likely etiology for each orthopedic disability entity found.  Regarding each diagnosed disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that such was related to the Veteran’s ACDUTRA service from October 1989 to March 1990 or active duty service from January 17, 1991 to March 28, 1991.  In the response, the examiner should address the following:  the Veteran’s lay statements/hearing testimony that he was involved in a motor vehicle accident during service, that his duties in service included “heavy lifting,” and that he had a low back problem during service and suffered chronic back pain; the private therapeutic massage report of April 2013, noting the Veteran had scar tissue in his lower back that may be from an old injury; and a July 2018 medical note from the Veteran’s primary care doctor (Dr. Scalia), opining that after having reviewed the “record in full” the Veteran’s “medical conditions are all related to [his] military service.”    
Regarding the claimed psychiatric disability, the psychiatric examiner is asked to consider and apply the criteria of DSM-5, in identifying and describing the nature, frequency, and severity of any psychiatric disability.  The examiner should (a) identify (by diagnosis) each psychiatric disability found or shown by the record since the Veteran filed his claim in August 2009; and (b) identify the likely etiology for each psychiatric disability found.  Regarding each diagnosed disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that such was related to the Veteran’s ACDUTRA service from October 1989 to March 1990 or active duty service from January 17, 1991 to March 28, 1991.  In the response, the examiner should address the following:  the Veteran’s lay statements/hearing testimony that he was verbally abused and exposed to stressful events during service and has had mental health problems ever since; and a July 2018 medical note from the Veteran’s primary care doctor (Dr. Scalia), opining that after having reviewed the “record in full” the Veteran’s “medical conditions are all related to [his] military service.”    
The examiners must explain the rationale for all opinions, citing to relevant evidence, supporting factual data and medical literature, and any prior medical opinions, as appropriate.  


The examiners are advised that the absence of documentation during or after service cannot be the only basis by which to reject a possible nexus to service (but providing a likely etiology, beyond any assertion that there was an absence of documentation of the disability in or after service would overcome this).
 
GEORGE R. SENYK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Debbie Breitbeil, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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