Citation Nr: 1326440 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-30 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including major depressive disorder, to include as secondary to service-connected lumbar spine and bilateral knee disabilities. 2. Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease and degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to December 1973. The issues currently on appeal come before the Board of Veterans' Appeals (Board) from a March 2010 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) which granted service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and assigned a 20 percent evaluation effective July 31, 2009, and denied service connection for major depressive disorder. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND With regard to the claim for service connection for a psychiatric disability, in his July 2009 claim, the Veteran asserted that he has depression because of pain; he also referenced his back with pain and numbness down both legs, as well as pain in his knees, all of which correspond to disabilities for which the Veteran was granted service connection in a March 2010 rating decision. Consequently, his claim to include as secondary to service-connected degenerative disc disease of the lumbar spine with bilateral radiculopathy, and patellofemoral syndrome of the knees. In a January 2010 VA examination report, the examiner, a clinical psychologist, opined, "The veteran's complaints of chronic back pain related to an injury he had while in the military appears to significantly contribute to the veteran's current depressive presentation but do not appear to have caused his diagnosis of depression." In a September 2011 addendum, the examiner added that the Veteran's major depressive disorder "is not secondary to any medical condition. It was my impression (at the time of the examination) that the veteran's complaints of chronic back pain contribute to his depressed mood, but there was no evidence that his depression was in any way caused by his back pain." (Parentheses in original.) The Court of Appeals for Veterans Claims (Court) has held that an opinion which discusses only causation, however broadly, cannot be construed to encompass a medical determination as to aggravation. Allen v. Brown, 7 Vet. App. 439, 449 (1995)("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the Veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation."). Thus, the Board finds an additional medical opinion is required For reference, 38 C.F.R. § 3.310(b) states, in pertinent part: Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. With regard to the claim for an increased rating for degenerative disease of the lumbar spine, the Board notes that the Veteran is currently rated as 20 percent disabled for his service-connected degenerative joint disease and degenerative disc disease of the lumbar spine under Diagnostic Code 5237. A new examination should be scheduled because the most recent examination of his lumbar spine, dated January 2010, is now more than 3 years old. Moreover, in his November 2011 substantive appeal, the Veteran asserted that he now experiences pain "all day every day." As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected degenerative disease of the lumbar spine. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any healthcare provider who has recently treated him for his degenerative disease of the lumbar spine and any treatment provider who has treated his psychiatric disorder at any time. After securing any necessary authorization from him, obtain all relevant treatment records identified which are not already of record. If any requested records cannot be obtained the Veteran and his representative should be notified of such. Additionally, request records pertaining to any treatment the Veteran received for his degenerative disease of the lumbar spine and major depressive disorder from the New York, New York VA Medical Center and associated clinics since May 2012. 2. After completion of the above, obtain a medical opinion regarding the Veteran's claimed acquired psychiatric disorder, including major depressive disorder, from a VA psychologist or psychiatrist. The claims file must be provided to and be reviewed by the clinician in conjunction with the opinion. If the clinician determines that an examination is necessary to respond to the questions, one should be scheduled. Following review of the claims file, the clinician should respond to the following questions: a. Was any acquired psychiatric disorder, including major depressive disorder, more likely (greater than 50 percent probability), less likely (less than 50 percent probability), or at least as likely as not (50 percent probability) caused by the Veteran's service-connected degenerative disc disease of the lumbar spine with bilateral radiculopathy, and/or patellofemoral syndrome of the knees? Please explain the reasoning for the conclusion. b. If not, did the Veteran's service-connected degenerative disc disease of the lumbar spine with bilateral radiculopathy and/or patellofemoral syndrome of the knees, permanently worsen any acquired psychiatric disorder, including major depressive disorder, beyond its normal progression? If the examiner finds permanent worsening beyond the natural progression, then he or she must state the baseline level of severity of the acquired psychiatric disorder established by the earliest available medical evidence, and describe the extent to which it was permanently worsened by the service-connected degenerative disc disease of the lumbar spine with bilateral radiculopathy, and/or patellofemoral syndrome of the knees. Please explain the reasoning for the conclusions. 3. After completion of item 1 above, provide a VA examination of the Veteran's service-connected degenerative joint disease and degenerative disc disease of the lumbar spine. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the range of motion and functional loss pertaining to the lumbar spine and document all objective evidence of those symptoms. 4. Thereafter, after conducting any additional development deemed necessary, the claims should be readjudicated. If a remanded claim remains denied, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of this case. 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). 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). _________________________________________________ K. A. BANFIELD 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).