Citation Nr: 18154168
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 14-43 514
DATE:	November 29, 2018
REMANDED
Entitlement to a disability rating in excess of 40 percent for the Veteran’s lumbar spine disability is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression is remanded.
Entitlement to service connection for a left hip disability is remanded.
Entitlement to service connection for a right hip disability is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
1. Back Disability 
The Veteran’s most recent VA examination for his back disability was in April 2011.  At his April 2018 Board hearing, the Veteran described that his symptoms have worsened since his April 2011 VA examination.  Specifically, he credibly testified an increase in frequency of back spasm and he had decreased range of motion since his previous examination.  Accordingly, a new VA examination is necessary to assess the current severity of the Veteran’s disability.  
2. Acquired Psychiatric Disorder
Some of the Veteran’s service treatment records are unavailable, as noted by the formal finding made in March 1997.  Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O’Hare vs. Derwinski, 1 Vet. App. 365 (1991). 
The Board rephrased the Veteran’s claim of entitlement to service connection for PTSD as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).  
The Veteran submitted a June 2018 private opinion concluding that he has PTSD and depression due to his in-service exposure to combat and missiles.  However, the Veteran’s military personnel records and available service treatment records do not show he was exposed to combat, and he was unable to identify a specific traumatic incident in service at his hearing before the undersigned or through correspondence with the AOJ.  On remand, the Veteran should be given another opportunity to describe his specific in-service stressors.  Furthermore, at his Board hearing, the Veteran stated his depression was also caused by his mobility limitation due to his service-connected back disability.  Therefore, a VA examination is necessary to determine if the Veteran’s depression is secondarily related to his service-connected back disability. 
3. Right and Left Hip Disabilities 
The Veteran received a private examination for his right and left hip disabilities in August 2018.  The private examiner stated that the osteoarthritis of both hips was due to his service-connected back.  However, the Board finds the examiner did not provide an explanation for the opinion, rendering it not probative.  A nexus opinion is necessary. 
4. TDIU
Currently, the criteria for consideration of a schedular TDIU are not met.  38 C.F.R. § 4.16(a) (2017).  A decision on the above remanded issues could significantly impact a decision on the issue of entitlement to a TDIU.  Therefore, as the issues are inextricably intertwined, a remand of the claim for TDIU is required.
The matters are REMANDED for the following action:
1. Contact the Veteran and provide him with another opportunity to describe his in-service PTSD stressors or incidents that he believes caused his acquired psychiatric disorder.  Conduct appropriate development if sufficient information is returned.  
2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his back disability.  The entire claims file and a copy of this remand must be made available to the examiner for review. 
All pertinent symptomatology and findings must be reported in detail.
3. Schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disability.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 
The examiner must opine as to the following: 
a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s psychiatric disability was proximately due to or the result of his service-connected back disability.
b) Whether it is at least as likely as not that his psychiatric disability was aggravated beyond its natural progression by his service-connected back disability.  
The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 
4. Schedule the Veteran for an examination with an appropriate clinician for his right and left hip disabilities.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 
The examiner must opine as to the following: 
a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right and left hip disabilities began during active service; are related to an incident of service, or; if arthritis is diagnosed, began within one year of separation from service.  
b) Whether it is at least as likely as not that the Veteran’s right and left hip disabilities were proximately due to or the result of his service-connected back disability.
c) Whether it is at least as likely as not that his right and left hip disabilities were aggravated beyond its natural progression by his service-connected back disability.  
The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 
5. Then, readjudicate the issues on appeal, including the inextricably intertwined issues of TDIU.  If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.
 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Brunot, Associate 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


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.