Citation Nr: 1326764	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  02-15 826	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for depression, to include as secondary to service-connected disorders.

2.  Entitlement to an increased rating for a low back disability, currently evaluated as 40 percent disabling.

3.  Entitlement to an increased initial rating for right lumbosacral radiculopathy, currently evaluated as 10 percent disabling.


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers

WITNESSES AT HEARING ON APPEAL

The Veteran, his spouse, and his daughter


ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel


INTRODUCTION

The Veteran served on active duty from July 1974 to March 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2000 and April 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

In September 2007, the Veteran, his spouse, and his daughter presented testimony before the undersigned at the RO, and a copy of the hearing transcript has been associated with the claims file.  At the hearing, the Veteran submitted additional evidence, with a waiver of jurisdiction regarding that evidence.

In March 2009 and May 2012, the Board remanded the claims for further development.  The claims have again been returned to the Board for appellate review.

The claims for entitlement to an increased rating for a low back disability, currently evaluated as 40 percent disabling, and entitlement to an increased initial rating for right lumbosacral radiculopathy, currently evaluated as 10 percent disabling, are REMANDED to the Agency of Original Jurisdiction (AOJ) for further development.

The issue of entitlement to an effective date prior to January 24, 2000 for schizophrenia and bipolar disorder with intermittent psychosis has been raised by the record, but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 


FINDING OF FACT

A competent medical opinion of record states that the Veteran's depression is etiologically related to his service-connected schizophrenia and bipolar disorder with intermittent psychosis.


CONCLUSION OF LAW

The Veteran's depression was proximately caused by his service-connected schizophrenia and bipolar disorder with intermittent psychosis.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran argues that his depression was caused or aggravated by his service-connected disabilities, to include pain caused by his service-connected low back disability and radiculopathy.  The Veteran is also service connected for schizophrenia and bipolar disorder with intermittent psychosis.  Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

With regard to current disability, the Veteran has a diagnosis of major depression with psychotic features, as specified on an October 2009 VA examination report.  Thus, the crux of the appeal is whether this disorder was caused or aggravated by a service-connected disability.

The only probative evidence of record pertaining to this question of service connection on a secondary basis is an April 2013 addendum opinion by a VA physician.  After a full review of the claims file, the physician opined that the Veteran's current depression was not caused or aggravated by his service-connected lumbosacral spine condition, as his back disorder was not severe enough to cause depression.  He further explained, however, that the Veteran "has major underlying psychiatric conditions which would cause depression, such as PTSD, schizoaffective disorder, paranoid schizophrenia, substance abuse, bipolar disorder, alcohol abuse, and hepatitis C" (emphasis added).  The psychiatrist noted that the Veteran had "such an extensive psychiatric history which includes substance abuse, and these are more likely the cause of his depression and not a lumbosacral condition which on [the physician's] physical exam was mild at most."  As the Veteran is service connected for some of the psychiatric disorders which the physician determined caused the Veteran's depression, the Board finds that this opinion weighs in favor of the claim for service connection.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Thus, given the facts noted above, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the criteria of entitlement to service connection for depression have been met.


ORDER

Entitlement to service connection for depression is granted.


REMAND

The Veteran and his representative contend that the Veteran's service-connected low back disorder is more severe than is reflected in the currently assigned 40 percent rating.

In an October 2003 statement, the Veteran requested consideration under the code for intervertebral disc syndrome (IVDS).  The evidence reflects that the Veteran has been diagnosed with disc problems as a part of his service-connected low back disability (i.e., lumbarparavertebral, fibromyositis, left S-1 radiculopathy, bulging disc).  Thus, consideration under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002 & 2003) and Diagnostic Code 5243 (2012) is appropriate.  The Veteran, however, has not been provided a VA examination that addresses his disability in light of the criteria set forth in Diagnostic Codes 5293 and 5243.

Neurological function is part of Diagnostic Code 5293 and could potentially affect the Veteran's claim for an increased initial rating for right lumbosacral radiculopathy.  Therefore, the Board finds that the claim an increased initial rating for right lumbosacral radiculopathy is inextricably intertwined with the other claim on appeal.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have a significant impact on the outcome of the other).  Action on the increased initial rating claim for right lumbosacral radiculopathy is therefore deferred.

Accordingly, this matter is hereby REMANDED to the AOJ for the following action:

1.  Obtain and associate with the claims file updated VA treatment records from the VA Medical Center in Lyons and from the outpatient clinic in Trenton, New Jersey, dated from December 7, 2012 to present.  All attempts to secure these records must be documented in the claims file.

2.  After all requested records are associated with the claims file, schedule the Veteran for VA examination of his lumbar spine.  The entire claims file, to include electronic records available on Virtual VA, must be made available to the examiner, and the report of examination should include discussion of the Veteran's documented medical history and assertions.  All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.  

The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees).  The examiner 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 examiner should indicate the point at which pain begins.  In addition, the examiner 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, he or she should express any such additional functional loss in terms of additional degrees of limited motion.

The examiner must specifically discuss whether the Veteran's low back disability has resulted in incapacitating episodes.  If so, the examiner must note the duration of such episodes over a 12-month period (e.g., total duration of 5 weeks over the past 12 months).  To the extent possible, the examiner should discuss historically, whether the Veteran has suffered incapacitating episodes at any time since January 2000.

Note: an incapacitating episode is defined as a period of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. 

The examiner must also discuss whether the Veteran's low back disability currently contains, or at any point since January 2000 has contained, persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other similar neurologic findings, with little intermittent relief.

The examiner should note whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable.

3.  Thereafter, review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full.  Review the examination report to ensure that it is in complete compliance with the directives of this REMAND (to include ensuring that the Veteran's disability has been examined in light of the criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002 & 2003) and 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012)).  Any deficiencies should be corrected.

4.  Thereafter, readjudicate the Veteran's claims.  In so doing, consider criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002 & 2003) and 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012) employed in rating disabilities of the spine.  Also consider whether "staged" ratings are warranted.  If either benefit sought remains denied, furnish a Supplemental Statement of the Case to the Veteran and his representative, containing, among other things, a citation to, and summary of, the "old" criteria for rating disabilities of the spine (38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002 & 2003)) and the "new" criteria for rating intervertebral disc syndrome (38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012)).  After the Veteran and his representative have been given an opportunity to respond, the claims file should be returned to this Board for further appellate review.

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).



____________________________________________
LAURA H. ESKENAZI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs