Citation Nr: 1328392 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-03 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a psychiatric disorder, to include manic depression and bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active military duty from May 1984 to March 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2006, a Travel Board hearing was held before an Acting Veterans Law Judge who is no longer employed by the Board. A transcript of the proceeding is of record. In April 2013, the Veteran was afforded the opportunity for a new hearing. He was notified that if he did not respond within 30 days it would be assumed he did not want a new hearing. The Veteran did not respond. As such, there are no outstanding hearing requests of record. In July 2007, March 2010, and May 2012 the Board remanded the claims for additional development and adjudicative action (the May 2012 Board decision also reopened and remanded the matter of service connection for a psychiatric disorder). The case has been returned to the Board for further appellate review. 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 A new remand is necessary to ensure compliance with the development requested by the Board's May 2012 remand. In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Furthermore, it is well-settled that when VA determines an examination or opinion is warranted it must provide one that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Veteran was afforded VA examinations in connection with the Board's May 2012 remand, the opinions obtained are not fully responsive to the Board's specific remand instructions. The Board remanded the back and neck claims in May 2012, in part, to ensure compliance with the directives of a March 2010 remand which instructed that the Veteran be afforded a VA examination by a board-certified orthopedist and that the examiner provide a fully supported rationale for all opinions expressed (including comment on a May 2006 letter from a private chiropractor in support of the Veteran's claim). The May 2012 remand also specifically requested examination by a board-certified orthopedic spine surgeon or orthopedist. Review of the record shows that the Veteran underwent VA examination of his low back and neck claims in December 2012 and an addendum was obtained in March 2013. However, a copy of the December 2012 VA examination report has not been associated with the Veteran's paper claims file and it is not available for review on Virtual VA (VA's electronic data storage system). Thus, the Board is unable to assess the extent of compliance with the May 2012 remand instructions. Nevertheless, it is noted that the addendum opinion is inadequate for rating purposes because the opinion is provided by a DPM (Doctor of Podiatric Medicine). Further, the podiatrist noted a structural abnormality of the Veteran's angle and base of stance demonstrated on 2010 examination which she characterized as a structural deformity that is likely a major factor and reason for the Veteran's acquired lower back condition. This finding also requires further development as to whether the structural abnormality is a congenital or developmental defect and, if so, whether it was subject to superimposed disease or injury during military service. Notably, congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. According to the VA General Counsel's opinion, however, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Regarding the psychiatric disorder claim, the May 2012 Board remand instructed the examiner to "provide an opinion as to whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran's current psychiatric disorder was both pre-existing and not aggravated by service." (emphasis in original) On May 2012 psychiatric examination, the diagnosis was bipolar disorder and the examiner opined that there is clear and unmistakable evidence that the bipolar disorder pre-existed service and "it does not appear to have increased in severity during service." Hence, rather than expressing the opinion in terms that it is obvious, manifest, or undebatable that the bipolar disorder was not aggravated by service; the examiner expresses his opinion in speculative language that does not provide the degree of certainty required. Further, the opinion that the Veteran's bipolar disorder is not at least as likely as not aggravated by a farcture of the finger during service is conclusory, without explanation of rationale. Hence, the May 2012 psychiatric opinion is not fully responsive to the May 2012 remand instructions, and is not an adequate basis for the determination that must be made. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the December 2012 VA examination report for the low back and neck disabilities. 2. After the December 2012 VA examination report is associated with the claims file, the Veteran should be scheduled for an orthopedic examination of his low back and neck by a board-certified orthopedic spine surgeon or orthopedist. The claims folder and any medical records contained in Virtual VA must be made available to and reviewed by the examiner. If the clinician does not have access to Virtual VA, any treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the clinician for review. Any tests deemed necessary by the examiner should be performed. a. Regarding the low back disability, please identify (by medical diagnosis) each low back disability shown by the current record. b. As to each entity diagnosed please indicate whether it represents acquired pathology or is a congenital or developmental defect. Please indicate based on the factual evidence of record (citing to supporting clinical data) when each diagnosed entity was first manifested. c. As to each diagnosed acquired low back disorder, please opine whether it is at least as likely as not (a 50% or better probability) that such was incurred in the Veteran's active service. If a congenital back defect is diagnosed, please indicate whether acquired pathology was superimposed on such during service. If so, please identify the pathology. d. Regarding the neck disability, please identify (by medical diagnosis) each neck disability shown by the current record and, based on the factual evidence of record (citing to supporting clinical data), when each diagnosed entity was first manifested. e. As to each diagnosed entity, please opine whether it is at least as likely as not (a 50% or better probability) related to the veteran's service (and specifically to the February 1987 treatment for neck pain diagnosed as spasmodic torticollis). The examiner should explain the rationale for any opinions given and any opinion contrary to those already of record should be reconciled, to the extent possible. The examiner should specifically comment on the May 2006 private chiropractor's opinion that, based on x-rays and the Veteran's reported history of an in- service back injury and complaints of daily chronic low back pain for 15 to 20 years, there is a "reasonable medical probability" that the Veteran's current back condition is a result of the injury in service. 3. The claims file should be returned to the May 2012 VA mental health examiner to obtain an addendum opinion. It is imperative that the claims file be made available to and be reviewed by the examiner. After reviewing the claims file, the examiner should respond to the following: a. As the May 2012 examiner found that the Veteran's bipolar disorder clearly and unmistakably pre-existed his service, the examiner should opine whether there is any evidence in the record that renders it undebatable from a medical standpoint that such disorder was not aggravated (chronically worsened or permanently increased in severity) during his active military service beyond its natural progression? If so, please identify such evidence. b. The examiner should provide a detailed explanation of rationale for the basis of the opinion that the Veteran's psychiatric disability was not aggravated by the fracture of his finger in service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data, as appropriate. If the May 2012 VA examiner is unavailable, the Veteran should be scheduled for a new VA psychiatric examination. 4. Following completion of the above, and any other necessary development, the issues remaining on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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 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). _________________________________________________ ALAN S. PEEVY 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).