Citation Nr: 1314299 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-27 499 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 10 percent for depression. 2. Entitlement to a rating in excess of 20 percent for paravertebral lumbar sacral myositis. 3. Entitlement to service connection for lower extremity peripheral neuropathy, to include as secondary to paravertebral lumbar sacral myositis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1971 to June 1973. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2008 rating decision in which the RO, in pertinent part, denied the Veteran's claim for an increased rating for depression and paravertebral lumbar sacral myositis. In addition, the Veteran's claim for service connection for lower extremity peripheral neuropathy was denied. In November 2008, the Veteran filed a notice of disagreement (NOD) with this rating decision. A statement of the case (SOC) was issued in July 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. For reasons expressed below, the matters on appeal are being remanded to RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. The Veteran's most recent VA psychiatric and spine examinations were in June 2009. The Veteran's representative generally contends that the reports of a June 2009 VA examinations--which are over four years old--are now inadequate to evaluate the Veteran's current depression and lumbar spine symptoms. In light of the above, to ensure that the record reflects the current severity of these disabilities, the Board finds that more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate each service-connected disability under consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). As regards the claim involving peripheral neuropathy, the Board notes that, although the Veteran had claimed service connection for lower extremity peripheral neuropathy on a secondary basis only, the March 2008 rating decision and the July 2009 SOC reflect that the RO considered service connection on both direct and secondary bases. A March 2008 VA examiner opined that the Veteran's claimed lower extremity peripheral neuropathy was not caused by or a result of his service-connected paravertebral lumbar myositis; no rationale was provided for this opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (Medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In addition, the examiner failed to address whether the Veteran's lower extremity peripheral neuropathy was directly related to his service. Accordingly, and given the other development being accomplished, the Board finds that further medical opinion with sufficient findings-based on full consideration of the Veteran's documented medical history and assertions, and supported by a thorough, clearly-stated rationale-is needed to resolve the claim for service connection for lower extremity peripheral neuropathy. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO/AMC should arrange for the Veteran to undergo VA psychiatric and spine examinations, each by an appropriate medical professional, at a VA medical facility. In addition, the RO/AMC should forward the claims file to the orthopedist who evaluated the Veteran with regards to his service connection for lower extremity peripheral neuropathy in March 2008. The RO/AMC should only arrange for further examination of the Veteran with regards to his service connection if the prior examiner is unavailable, or if further examination of the Veteran is deemed necessary. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of the claim(s). See 38 C.F.R. § 3.655 (a),(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO/AMC should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to accomplishing actions responsive to the above, to ensure that all due process requirements are met, and that the record is complete, and the RO/AMC should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As regards to VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in San Juan, Puerto Rico dated through June 2009. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). To ensure that all outstanding VA records are obtained, the RO/AMC should obtain from the San Juan VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since June 2009, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO/AMC should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The letter should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO/AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO/AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO/AMC's adjudication of each claim for higher rating should include consideration of whether "staged rating" of the disability (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate. In connection with each higher rating claim, the RO should also consider and discuss whether the procedures for assigning any higher rating on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1) are invoked. As a final point, the Board notes that the claims file includes evidence written in Spanish with no accompanying certified English translation. On remand, the RO/AMC should take the opportunity to review the Veteran's claims file to identify all pertinent items of evidence written in Spanish-to particularly include a statement by the Veteran dated in June 2002 and a January 1974 VA hospitalization report-and translate those items into English in order to facilitate review of the record by the Board. Accordingly, these matters are hereby REMANDED for the following action: 1. Undertake appropriate action to have all pertinent items of evidence written in Spanish, to include a June 2002 statement from the Veteran and a January 1974 hospitalization report, translated into English. The translated documents should be associated with the claims file. 2. Obtain from the San Juan VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since June 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Also clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at a VA medical facility, to determine the current nature and severity of his service-connected depression. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; memory loss; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's PTSD, and an explanation of what the score means. Based on review of the Veteran's documented medical history and assertions, the examiner should also indicate whether, at any time since the September 2007 claim for increase, the Veteran's service-connected psychiatric disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. The examiner should set forth all examination findings, along with complete rationale for any conclusions reached, in a printed (typewritten) report. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, also arrange for the Veteran to undergo VA spine examination, by a physician, at a VA medical facility, for evaluation of his service-connected paravertebral lumbar sacral myositis. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should conduct range of motion testing of the lumbar spine (expressed in degrees). The physician should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the physician should express any such additional functional loss in terms of additional degrees of limited motion. The physician should also identify any neurological impairment associated with the Veteran's paravertebral lumbar sacral myositis, to include any urinary or bowel impairment. For each such identified impairment, the examiner should indicate whether the impairment constitutes a separately ratable manifestation of lumbar spine disability; and, if so, the examiner should provide an assessment of the severity of the manifestation. Based on review of the Veteran's documented medical history and assertions, the examiner should indicate whether, at any time since the September 2007 claim for increase, the Veteran's service-connected lumbar spine disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. The examiner should set forth all examination findings, along with complete rationale for any conclusions reached, in a printed (typewritten) report. 7. After all records and/or responses received from each contacted entity have been associated with the claims file, also forward the Veteran's entire claims file, to include a complete copy of this REMAND, to the March 2008 VA examiner for an addendum opinion. The physician should clearly indicate whether the Veteran currently suffers, or at any time since September 2007 suffered, from lower extremity peripheral neuropathy. If so, the examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or was otherwise incurred in service, to include as secondary to the Veteran's service-connected paravertebral lumbar sacral myositis. In rendering each requested opinion, the examiner should consider and discuss all relevant evidence, to include medical documents, and all lay assertions. If the orthopedist who provided the March 2008 opinion is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, document that fact in the claims file, and arrange for the Veteran to undergo another VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinion responsive to the question and comments noted above. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should set forth all examination findings (if any), along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 8. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 9. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 10. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for translation of any additional document(s)), readjudicate the claims on appeal in light of all pertinent evidence (to include all evidence added to the record since the last adjudication) and legal authority (to include, with respect to each claim for higher rating, consideration of whether staged rating, pursuant to Hart (cited above), is appropriate, as well as whether the procedures of 38 C.F.R. § 4.16(b)(1) are invoked). 11. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).