Citation Nr: 1309310 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 08-14 089 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), a dysthymic disorder, depression, not otherwise specified (NOS) schizophrenia, NOS psychosis, and a generalized anxiety disorder. 2. Entitlement to service connection for a cervical spine disorder to include degenerative disc disease. 3. Entitlement to service connection for hypertension. 4. Entitlement to a disability rating (evaluation) in excess of 40 percent for lumbosacral strain with L5 spondylolysis and T5 vertebral fracture residuals. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. The Veteran had active service from April 1963 to March 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from January 1990, November 2007, and September 2009 rating decisions of the Waco, Texas, Regional Office (RO). The January 1990 rating decision reduced the disability rating for the lumbosacral strain from 20 to 10 percent effective as of April 1, 1990; however, in January 1991, the RO restored the 20 percent rating for lumbosacral spine disability and recharacterized it as lumbosacral strain with L5 spondylolysis and T5 vertebral fracture residuals. In November 2007, the RO, in pertinent part, determined that new and material evidence had not been received to reopen service connection for both bilateral hearing loss and hypertension, and denied service connection for Type II diabetes mellitus and a cervical spine disorder. In September 2009, the RO denied service connection for PTSD, insomnia, depression, and suicidal intentions. In July 2011, the Board determined that new and material evidence had not been received to reopen service connection for bilateral hearing loss; determined that new and material evidence had been received to reopen service connection for hypertension; denied service connection for diabetes mellitus, PTSD, and a cervical spine disorder; increased the evaluation for lumbosacral strain with L5 spondylolysis and T5 vertebral fracture residuals from 20 to 40 percent; and remanded the issues of service connection for an acquired psychiatric disorder to include a dysthymic disorder, depression, schizophrenia, and a generalized anxiety disorder and service connection for hypertension to the RO for additional action. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2011, the Appeals Management Center (AMC) effectuated the Board's award of a 40 percent evaluation for the spinal disability as of September 27, 1989. In July 2012, the Court granted the Parties' Joint Motion for Partial Remand; vacated those portions of the July 2011 Board decision which denied both service connection for PTSD and a cervical spine disorder to include degenerative disc disease and an evaluation in excess of 40 percent for the Veteran's spinal disorder; and remanded those issues to the Board for additional action. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The Board has reframed the issues of service connection for PTSD and an acquired psychiatric disorder to include a dysthymic disorder, depression, schizophrenia, and a generalized anxiety disorder as entitlement to service connection for a chronic acquired psychiatric disorder to include PTSD, a dysthymic disorder, depression, NOS schizophrenia, NOS psychosis, and a generalized anxiety disorder, in accordance with the Court's decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). This appeal is REMANDED to the RO. REMAND In July 2012, the Court granted the Parties' Joint Motion for Partial Remand and remanded the Veteran's claims of entitlement to service connection for PTSD and a cervical spine disability (to include degenerative disc disease) and an increased evaluation for the spinal disability to the Board for additional action as directed by the Joint Motion. The Joint Motion conveys that: (1) the Board should address the Veteran's claimed in-service PTSD stressor of having fallen down a flight of stairs while in Germany; (2) consider entitlement to an evaluation in excess of 40 percent for the lumbar spine disability under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); (3) request VA clinical documentation for the period from 1990 to 1999 from the Dallas, Texas, VA Medical Center (VAMC); and (4) afford the Veteran a VA examination which addresses the relationship, if any, between cervical spine degenerative disc disease and his service-connected lumbar spine disability. The Board has no discretion and must remand the instant appeal for compliance with the Court's July 2012 Order granting the Parties' Joint Motion to Partial Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425(2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the Parties that forms the basis of the Joint Motion to Remand). In accordance with the Board's July 2011 Remand instructions, the Veteran was afforded a September 2011 VA psychological examination for compensation purposes. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In reviewing the September 2011 VA examination report and the August 2012 addendum thereto, the Board finds that it is deficient for rating purposes as it provided conflicting information regarding diagnosis(es) and also did not answer the question asked regarding the relationship between lumbar spine disability and schizophrenia. The September 2011 VA examination report reflects that the Veteran was diagnosed with schizophrenia, NOS. The VA examiner concurrently responded "no" to the question as to whether the Veteran had "more than one mental disorder diagnosed" while simultaneously reporting that the Veteran had multiple Axis III medical diagnoses of seizures, paranoid schizophrenia, neurotic depression, and psychosis, NOS. In the August 2012 addendum, the VA examiner clarified that the Veteran's "schizophrenia, NOS" was "technically called psychotic disorder, NOS according to the DSM-IV TR." The examiner's stated opinion was that "there is no empirical research to support the claim that the Veteran's diagnosis of lumbar spine disability caused or could be exacerbated by Veteran's diagnosis of schizophrenia, NOS." The question posed to the VA examiner was not whether the schizophrenia exacerbated the lumbar spine disability; the question was whether the lumbar spine disability caused or aggravated (permanently worsened) the schizophrenia. While the opinion was responsive to the question regarding causation, the opinion was not responsive on the question of aggravation ("exacerbation"). VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, the Veteran should be afforded an additional VA mental disorders examination in order to ascertain the current nature and etiology of his chronic acquired psychiatric disorder. An August 1990 Social Security Administration (SSA) administrative law judge opinion indicates that the Veteran was granted SSA disability benefits. The evidence considered by the SSA in granting the Veteran's claim is not of record. The Court has clarified that VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187-188 (1992). The Board notes that a September 2011 VA examination report reflects the Veteran's history of having worked for 18 years before retiring, and that he had not worked since, without reference to disability as the cause of the post-retirement unemployment. The evidence does not otherwise suggest that the Veteran is unemployable, including to service-connected disabilities, and neither the Veteran nor the representative has so allege. The Board recognizes the potential for the requested SSA records and SSA disability determination to raise such a claim for unemployability by indicating that a service-connected disability or disabilities contribute to the reasons for the unemployability; however, this is only a possibility that is not yet suggested by the evidence or contentions. Such possibility requires assistance in obtaining SSA records, but does not per se raise a claim of individual unemployability. For these reasons, the Board does not find that a claim for individual unemployability has been reasonably raised during the adjudicatory process of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Accordingly, the case is REMANDED for the following action: 1. Identify health care providers and request treatment records. Contact the Veteran and request that he provide information as to all treatment of his acquired psychiatric, cervical spine, and hypertension disabilities and his service-connected lumbosacral strain with L5 spondylolysis and T5 vertebral fracture residuals, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. VA treatment records. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided at the Dallas, Texas, VAMC between 1990 and 1999. 3. SSA Records. Contact the SSA and request that it provide copies of all records developed in association with the Veteran's award of disability benefits for incorporation into the record. 4. Schedule the Veteran for a VA mental disorders examination for compensation purposes in order to assist in determining the current nature and etiology of his chronic acquired psychiatric disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail, and a psychiatric diagnosis(es) should be rendered. If a diagnosis of PTSD is advanced, the examiner should identify the specific stressor or stressors supporting such a diagnosis. The examiner should advance the following opinions: Is it as likely as not (i.e., probability of 50 percent or more) that any identified chronic acquired psychiatric disorder: (A) had its onset during active service; (B) is related to the Veteran's 1963 fall down a flight of stairs in Germany; (C) otherwise originated during active service; and/or (D) is caused by the service-connected disabilities? (E) is permanently increased in severity beyond its natural progression due to the service-connected disabilities? Please note and discuss the diagnoses of schizophrenia NOS, paranoid schizophrenia, neurotic depression, and psychosis NOS. The service-connected disabilities are lumbosacral strain with L5 spondylolysis and T5 vertebral fracture residuals, right lower extremity lumbar radiculopathy, and left lower extremity lumbar radiculopathy. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. Schedule the Veteran for a VA orthopedic examination for compensation purposes in order to assist in determining the current nature and etiology of his cervical spine disorder and service-connected lumbosacral strain with L5 spondylolysis and T5 vertebral fracture residuals. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance the following opinions: Is it as likely as not (i.e., probability of 50 percent or more) that any identified cervical spine disorder: (A) had its onset during active service; (B) is related to the Veteran's fall down a flight of stairs while in Germany; (C) otherwise originated during active service; and/or (D) is caused by the service-connected disabilities? (E) is permanently increased in severity beyond its natural progression due to the service-connected disabilities? The service-connected disabilities are lumbosacral strain with L5 spondylolysis and T5 vertebral fracture residuals, right lower extremity lumbar radiculopathy, and left lower extremity lumbar radiculopathy. The VA examiner should further identify the limitation of activity imposed by the Veteran's thoracolumbar disabilities with a full description of the effect of the disabilities upon his ordinary activities. The examiner should fully describe any pain, stiffness, weakened movement, excess fatigability, and incoordination that are present. Determinations on whether the Veteran exhibits pain with use of his thoracolumbar spine should be noted and described. If feasible, the determinations concerning pain, weakness, and fatigability should be portrayed in terms of the degree of additional range of motion loss. If such a determination is not feasible, this should be stated for the record and the reasons provided. The examiner should express an opinion as to the impact of the Veteran's thoracolumbar spine disabilities upon his vocational pursuits. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 6. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).