Citation Nr: 1309628 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 06-17 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for syncope, blackout spells, and fainting spells, claimed as dizziness. 2. Entitlement to service connection for a cardiovascular disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and depression, to include as secondary to a service-connected disability. 4. Entitlement to service connection for a disability affecting the bilateral arms, to include arthritis and numbness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from June 1971 to June 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2004 by the Department of Veterans Affairs (VA) New Orleans, Louisiana, Regional Office (RO). The Veteran requested a video-conference hearing in connection with the current claim. The hearing was scheduled and subsequently held in June 2008. The Veteran testified before the undersigned Veterans Law Judge (VLJ) and the hearing transcript is of record. When the case was most recently before the Board in September 2011, it was remanded for additional evidentiary development. It has been returned to the Board for appellate review. The Veteran was afforded a VA brain and spinal cord examination in December 2010. At that time, the examiner noted the presence of cervical spine radiculopathy. In light of the Veteran's service-connected cervical spine disability, the Board referred this issue in September 2011 for any appropriate action. Inasmuch as the Veteran has claimed that he experiences symptoms in his arms, including numbness, which may be neurologic in origin, it is appropriate for the Board to consider whether there is radiculopathy secondary to the service-connected cervical spine disability as part of the pending claim. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that Issue 4 was previously characterized as entitlement to service connection for arthritis of the low back and bilateral arms, to include numbness of the joints. On remand, the Appeals Management Center (AMC) issued a rating decision in November 2012 granting service connection for degenerative joint disease of the lumbar spine. Thus, that benefit has been granted in full, and it is no longer a part of the appeal, and the issue has been rephrased accordingly. Finally, it is noted that the Veteran raised additional claims for service connection for diabetes mellitus type II as secondary to his service-connected cervical and lumbar spine disabilities, and whether new and material evidence has been submitted to reopen previously denied claims for chronic obstructive pulmonary disease and sleep apnea. See Veteran's statement dated in January 2012. As these matters have not been adjudicated, they are referred to the agency of original jurisdiction for the appropriate consideration. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board remanded these matters in September 2011 for additional development to include obtaining VA examinations and requesting private treatment records from sources identified by the Veteran. The private treatment records were requested and responses from the identified sources, including records, were added to the Veteran's claims folders. VA treatment records were also obtained. Additionally, VA examinations were conducted in December 2011, and an examination addendum was provided in October 2012. The AMC continued to deny service connection for Claims 1 through 4 as set forth in a supplemental statement of the case (SSOC) issued in November 2012. In the September 2011 Remand, the Board directed that the originating agency schedule the Veteran for examinations with regard to the disabilities for which he seeks service connection. Although examinations were conducted and an addendum was provided as noted above, the Veteran's accredited representative urges in January 2013 argument before the Board that the examinations failed to substantially comply with the Board's remand directives. In this regard, the Court has noted, with respect to remand taskings given to the RO/AMC, that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268 (1998), violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). Yet, in this instance, as explained below, the Board agrees with the representative that the examination results with respect to the appellant's claims are inadequate. See Miller v. West, 11 Vet. App. 345 (1998), Gabrielson v. Brown, 7 Vet. App. 36 (1994), Stegall v. West, 11 Vet. App. 268 (1998), and Barr v. Nicholson, 21 Vet. App. 303 (2007). More specifically, as noted by the Veteran's representative, the examiner who completed the December 2011 Disability Benefits Questionnaire (DBQ) for orthopedic purposes only addressed the low back disability. The Remand had ordered that the examiner to, "determine the nature and etiology of currently diagnosed degenerative changes in the lumbar spine and bilateral shoulders and their relationship to service, if any." Although the AMC noted this deficiency in October 2012, there is no record that the requested examination was thereafter requested or conducted. Moreover, while the December 2010 VA examiner diagnosed cervical radiculopathy, there is no indication as to whether one or both upper extremities are affected. Accordingly, the claim must be returned to the AMC in order for the joint examination to be accomplished. As to the issues of syncope and cardiovascular disorder, a December 2011 VA neurological examination report reflects the diagnosis of dysautonomia which may also be called neurocardiogenic syncope and the opinion that the symptoms of the disorder first manifested themselves in basic training with increased physical activity precipitating episodes of dizziness and/or syncope. The examination indicates that it was at least as likely as not that the Veteran's neurocardiogenic syncope began in service, that he had one prior passing out episode in 8th grade and that while the disability was not permanently aggravated by service, the physical training brought about the symptoms of his disorder. There was a lack of rationale to support the opinion. The December 2011 heart disability examination also contains a diagnosis of neurocardiogenic syncope, adding that it was permanently aggravated at basic training. It was noted to be possibly stress-related. The AMC requested an addendum as to the heart examination, noting that the examination did not comply with the remand directives as to when the disabilities. Although the VA examiner who conducted the heart examination provided an addendum in October 2012, he failed to provide any rationale to support the conclusion that the increase in intensity with regard to neurocardiogenic syncope was most likely due to the natural progress of the disease. Thus, the Board finds these to be inadequate and that there has not been substantial compliance with the Remand directives. Accordingly, the claim must be returned to the AMC in order for another addendum. As to the claim of service connection for psychiatric disability, the December 2011 psychiatric examination was to be an addendum to a January 2011 examination report deemed inadequate because it failed to address the issue of aggravation within the context of a secondary service-connection claim as requested in the Board's November 2010 remand order. However, the addendum failed to substantially comply with the Board's remand directives inasmuch as it failed to specifically address whether the Veteran's psychiatric disorders were caused by, the result of, due to or aggravated by his service-connected cervical spine disability. The examiner merely cited to the January 2011 opinion and failed to provide any supporting rationale as requested by the Board. Accordingly, the claim must be returned to the AMC in order for another addendum. On remand, recent VA treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following action: 1. Obtain recent VA treatment records dating from July 2012 that are not already associated with the claims folder or the virtual VA record. 2. Notify the Veteran pursuant to 38 C.F.R. § 3.159 as to how he can substantiate his claim for service connection for a neurologic disability affecting the arms on a secondary basis. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of disabilities affecting the arms, and their relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary should be conducted at this time, and included in the examination report. The examiner is asked to express an opinion as to whether the currently diagnosed degenerative changes in the bilateral shoulders, and any other orthopedic disability affecting the arms, at least as likely as not (i.e., 50 percent or greater possibility) began in or are related to his period of active service, to include his completion of basic airborne training (and subsequent receipt of the Parachute Badge), and/or his subjective complaints of recurrent back pain, arthritis, rheumatism, or bursitis on discharge from service. In reaching these conclusions, the examiner should discuss the significance, if any, of (1) the Veteran's pre-service history of a broken collarbone, (2) his in-service parachute training (even if no accident as alleged by the Veteran can be verified), (3) the notation of a spine abnormality on separation examination, and (4) his post-service report of a torn right rotator cuff (see January 1999 private neurological evaluation report). The examiner should provide the Veteran with an opportunity to state what symptoms he experiences and for how long they have been present, and consider the Veteran's report of continuity of symptoms, if any, since discharge from service in reaching this conclusion. For purposes of this opinion, the examiner should consider credible the Veteran's report that he experienced a parachute injury in service. The examiner must provide a complete rationale for any stated opinion. With respect to cervical radiculopathy (see VA examination report of December 2010), please address whether the Veteran has radiculopathy in one or both upper extremities. Regarding both radiculopathy and bilateral cubital tunnel syndrome (see April 2009 medical record of Dr. Robichaux), which was diagnosed during the pendency of the appeal, please address whether they are at least as likely as not related to active service. If not, is it at least as likely as not that radiculopathy and bilateral cubital tunnel syndrome are proximately due to the service-connected cervical strain/traumatic arthritis. If not, is it at least as likely as not that radiculopathy and bilateral cubital tunnel syndrome are aggravated (i.e., worsened) beyond the natural progress by the service-connected cervical strain/traumatic arthritis. 4. Then, return the Veteran's claims file to the examiners who performed the December 2011 VA syncope and heart examinations and the October 2012 addendum or a suitable substitute. The claims folder and a copy of this remand must be made available to the examiners. The examiners should note in the examination report that the claims file has been reviewed. Each examiner should first address whether the Veteran's dysautonomia syndrome, neurocardiogenic syncope, and/or other cardiovascular or neurological disability resulting in syncope, blackout spells, dizziness, and fainting spells clearly and unmistakably (i.e., undebatably) existed prior to service. Please provide a complete rationale for the opinion. If so, each examiner is also asked to indicate whether it is clear and unmistakable (i.e., obvious, manifest, undebatable) that the pre-existing disease WAS NOT aggravated (i.e., permanently increased in severity) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please explain the rationale for the opinion. Please note: The examiner should provide an explanation of the natural progress of dysautonomia syndrome, neurocardiogenic syncope, and/or other cardiovascular or neurological disability with particular emphasis on the facts of the Veteran's case. In the alternative, the examiner is asked to express an opinion as to whether the currently diagnosed dysautonomia syndrome, neurocardiogenic syncope, and/or other cardiovascular or neurological disability at least as likely as not (i.e., 50 percent or greater possibility) began in or is related to the Veteran's period of active service, including but not limited to the Veteran's in-service subjective complaints of dizziness, fainting spells, passing out, palpitations, or pounding heart. Please note: the examiner must provide separate opinions for the currently diagnosed dysautonomia syndrome, neurocardiogenic syncope, and/or other cardiovascular or neurological disability found on examination or of record. The examiner must provide a complete rationale for any stated opinion. 5. Then, return the Veteran's claims file to the examiner who authored the December 2011 VA psychiatric examination addendum, or a suitable substitute. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. The examiner should address whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the Veteran's psychiatric disorders were caused by, the result of, or due to his service-connected cervical or lumbar spine disabilities. Please provide a complete explanation for the opinion. If the examiner answers the above question negatively, the examiner is asked to express an opinion as to whether the Veteran's psychiatric disorders were aggravated (i.e., permanently worsened) beyond the natural progress by his service-connected cervical or lumbar spine disabilities. Please provide a complete explanation for the opinion. 6. After the requested examinations or addenda have been completed, they should be reviewed to ensure that they are in complete compliance with the directives of this remand. The examination reports or addenda should be returned to the examiners if they are deficient in any manner. 7. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).