Citation Nr: 1336045 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-33 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an evaluation greater than 10 percent for cervical spine disability for the period prior to September 6, 2011. 2. Entitlement to an evaluation greater than 20 percent for cervical spine disability for the period beginning September 6, 2011. 3. Entitlement to service connection for left upper extremity radiculopathy. 4. Entitlement to service connection for an acquired psychiatric disorder, to include depression, adjustment disorder, and bipolar disorder. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to July 1975 and from October 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran also perfected an appeal as to the issue of entitlement to service connection for right upper extremity radiculopathy. In July 2012, the RO granted service connection for this disability. Thus, this issue is resolved and no longer for consideration. In August 2011, an informal conference was held in lieu of a requested Decision Review Officer (DRO) hearing. In April 2013, the Veteran failed to report for a videoconference hearing. He has not offered good cause for his failure to report and he has not requested to reschedule the hearing. The request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). The VBMS and Virtual VA folders have been reviewed. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. For the period prior to September 6, 2011, and with consideration of functional impairment due to pain on motion and other factors, the Veteran's cervical spine disability more nearly approximates forward flexion greater than 15 degrees but not greater than 30 degrees or combined range of motion not greater than 170 degrees. 2. For the period beginning September 6, 2011, the Veteran's cervical spine disability is not manifested by forward flexion to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 3. The Veteran does not currently have left upper extremity radiculopathy and the disability is not shown during the appeal period. CONCLUSIONS OF LAW 1. For the period prior to September 6, 2011, the criteria for a 20 percent evaluation, and no more, for a cervical spine disability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5242. 2. For the period beginning September 6, 2011, the criteria for an evaluation greater than 20 percent for service-connected cervical spine disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5242. 3. Left upper extremity radiculopathy was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In September 2009, prior to the rating decision in question, VA notified the Veteran of the information and evidence needed to substantiate and complete claims for service connection and for increase, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. He was also provided notice of applicable rating criteria and of how VA assigns disability ratings and effective dates. Following additional development, the appeal was most recently readjudicated in the July 2012 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains service treatment records related to the Veteran's first period of service and VA medical records. The Veteran also submitted select service treatment records related to his second period of service. As discussed below, the Board is remanding the psychiatric issue to obtain additional service records. The Board will address the remaining issues on the merits. In doing so, the Board notes that additional service treatment records would not be relevant to the current evaluation for cervical spine disability. With regard to the service connection claim decided, available records already show complaints related to the left arm during service, but as discussed below, the record does not establish current disability. The Veteran was provided VA cervical spine examinations in August 2004, June 2005, October 2009, and September 2011. On review, the examinations are adequate and further examination is not needed at this time. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Analysis Evaluation for cervical spine disability In September 2004, the RO granted service connection for cervical spine disability, characterized as status post cervical disc surgical procedure with degenerative joint disease at C4-5, cord impingement, and an osteophyte. A 10 percent evaluation was assigned effective January 22, 2004. The most recent claim for increase was received in September 2009. In November 2009, the RO continued the 10 percent evaluation. The Veteran disagreed and perfected this appeal. In July 2012, the RO increased the evaluation for cervical spine disability to 20 percent from September 6, 2011. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994). Here, as explained below, a uniform rating is warranted. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), degenerative arthritis of the cervical spine is rated as follows. A 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned when forward flexion of the cervical spine is 15 degrees or less; or, there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned when there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. For VA compensation purposes, normal forward flexion of cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in the note are the maximum that can be used for calculation of the combined range of motion. See General Rating Formula at Note (2). On VA examination in October 2009, the Veteran reported pain located centrally in the lower cervical spine at about C6. There was also pain across the left medial upper thoracic area basically all of the time. The pain shoots into the right arm. He reported severe flare-ups every 2 to 3 weeks lasting hours. If flare-ups happen at work, he just struggles through. At home, he would do nothing unnecessary until the pain improves. There were no incapacitating episodes of spine disease. On physical examination, posture and head position were normal. There was symmetry in appearance and gait was normal. There were no abnormal spinal curvatures or cervical spine ankylosis. There was no spasm, atrophy, guarding, tenderness, or weakness in the cervical spine. Motor examination of the upper extremities was 5/5 on the right and left. Muscle tone was normal and there was no muscle atrophy. There was no abnormal sensation of the upper extremities. Range of motion of the cervical spine was flexion 0 to 45 degrees; extension 0 to 50 degrees; left lateral flexion 0 to 45 degrees; left lateral rotation 0 to 65 degrees; right lateral flexion 0 to 55 degrees; and right lateral rotation 0 to 65 degrees. There was no objective evidence of pain on active range of motion. There was no objective evidence of pain or additional limitations following repetitive motion testing. Following examination, diagnosis was multilevel degenerative disc disease of the cervical spine that is mild to moderate. There was also degenerative joint disease of the cervical spine that is mild to moderate. The examiner stated that the disability results in problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased upper extremity strength and pain. The Veteran most recently underwent a VA spine examination on September 6, 2011. He reported that he was on chronic pain medication with minimal relief. Regarding flare-ups, he reported worsening pain at the neck with motion or with movement of the right shoulder. On physical examination forward flexion was to 20 degrees, with painful motion beginning at 15 degrees. Extension was to 20 degrees with painful motion beginning at 15 degrees. Right lateral flexion was to 10 degrees with painful motion beginning at 5 degrees. Left lateral flexion was to 10 degrees with painful motion beginning at 5 degrees. Right lateral rotation was to 20 degrees with painful motion beginning at 10 degrees. Left lateral rotation was to 40 degrees, with painful motion beginning at 30 degrees. The Veteran was able to perform repetitive-use testing and post-test range of motion was forward flexion to 20 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 30 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees. Functional impairment following repetitive use included less movement than normal, weakened movement, and pain on movement. There was localized tenderness or pain to palpation, but no guarding or muscle spasm. Muscle strength testing was 5/5 in the upper extremities. There was no muscle atrophy. There was no intervertebral disc syndrome of the cervical spine. The examiner stated that the cervical spine condition impacted the Veteran's ability to work, to include due to constant neck pain and pain accelerated by movement. In determining whether an increased evaluation is warranted, the Board acknowledges that range of motion findings on the October 2009 VA examination fall within the 10 percent range. Notwithstanding, the Veteran reported pain and flare-ups. He also reported that due to his disability, he must restrict his activity and cannot turn his head much at all. The Veteran is competent to report his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Additionally, the examiner characterized the disability as mild to moderate and noted problems with lifting and carrying, etc. The Veteran's complaints were essentially confirmed on subsequent examination, which showed painful motion and forward flexion limited to 20 degrees. Thus, considering the Veteran's statements as to functional impairment and resolving reasonable doubt in his favor, the Board finds that the criteria for a 20 percent evaluation were more nearly approximated for that portion of the appeal period prior to September 6, 2011. See DeLuca. The criteria for an evaluation greater than 20 percent, however, are not met or more nearly approximated at any time during the appeal period. Evidence of record does not show forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Rather, he retained functional use of flexion to better than 15 degrees. The Board acknowledges that recent examination showed painful motion beginning at 15 degrees of forward flexion and that there was increased functional impairment following repetitive motion and use. Post-test forward flexion, however, remained at 20 degrees and the overall symptomatology and objective findings are not compatible with a higher evaluation based on functional impairment due to pain on motion or other factors. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Stated differently, despite the fact that the Veteran had pain at 15 degrees, he retained functional flexion to better than 15 degrees. With regard to the entire appeal period, evidence of record does not show intervertebral disc syndrome with incapacitating episodes as defined by regulation and increased evaluations are not warranted under Diagnostic Code 5243. Pursuant to Note (1) of the General Rating Formula, associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate diagnostic code. The Veteran is already receiving a separate 20 percent evaluation for right upper extremity radiculopathy; and service connection for left upper extremity radiculopathy is denied herein. There is no basis for additional separate evaluations. In reaching this decision, the Board has also considered whether the Veteran may be entitled to extraschedular ratings pursuant to 38 C.F.R. § 3.321 (2013). In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating is required. If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. Regarding the first step of Thun, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology. The Veteran has described symptomatology such as neck pain and limitation of motion. The Board has specifically considered the rating criteria addressing limitation of motion of the neck and the currently assigned rating is based on functional impairment to include pain and limited motion. Here the rating criteria clearly contemplate the Veteran's disability picture and higher schedular evaluations are available for greater levels of disability. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Evidence of record suggests that the Veteran is currently gainfully employed. Therefore, the Board does not find that a claim for a total rating based on individual unemployability (TDIU) is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Service connection In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including other organic diseases of the nervous system, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). Without a current disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir.2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In November 2009, the RO denied service connection for left upper extremity radiculopathy. The Veteran disagreed with the decision and perfected this appeal. Service treatment records dated in November 2003 show the Veteran was seen for cervical spine pain radiating from the neck to the left hand. Assessment was severe degenerative joint disease cervical spine with radiculopathy. A January 2004 medical assessment notes that MRI revealed severe degenerative disc disease with severe canal and foraminal encroachment at C4-5. The Veteran was made nondeployable. A medical board was not initiated. He wanted to demobilize and follow up at VA or his home. A February 2004 letter from Dr. C.A. at Neurological Associates, Inc., indicates that the Veteran was seen with a chief complaint of chronic pain and numbness at the extremity. The neurologic examination showed no neurological deficit but he complained of intermittent numbness of the left hand and that the left upper extremity is not as strong. Impression was cervical spondylosis. Co-morbidities included intermittent root syndrome and cervical strain. A diagnosis of left upper extremity radiculopathy was not noted. On VA spine examination in June 2005, the Veteran reported pain radiating to the shoulder. Following physical examination, diagnosis was degenerative joint disease of the cervical spine status post cervical spine fusion. A diagnosis of left upper extremity radiculopathy was not noted. The Veteran underwent a VA spine examination in August 2004. He reported that the pain in his left arm had cleared but is intermittent. He also described weakness in the left arm. Notwithstanding, a diagnosis of left upper extremity radiculopathy was not provided. The Veteran was seen at the Walter Reed Army Medical Center in September 2004. Current symptoms included chronic pain in the right shoulder and arm with tingling into the arm and hand. Complaints related to the left upper extremity were not noted. Objectively, there was decreased sensation in the right upper arm and right hand. Assessment was cervical spondylosis and moderately severe central canal stenosis at C4-5 with multilevel foraminal stenosis with probable right C6 radiculopathy with additional findings of myofascial pain syndrome. The Veteran was evaluated by a private orthopedic facility in August 2009. He reported persistent symptoms in the arms and legs with weakness and numbness in the right arm. The physician opined that more likely than not the neck problems with radiculopathy was service-connected and he would make new claims for right arm radiculopathy and bilateral leg radiculopathy. The Veteran underwent VA electrodiagnostic testing in October 2009. At that time, he reported pain radiating down the right arm to the hand. Impression was normal examination. There was no electrodiagnostic evidence of an acute cervical radiculopathy or brachial plexopathy in the right upper extremity nor a C4 radiculopathy in the left upper extremity. There was also no electrodiagnostic evidence of a medial mononeuropathy at the wrist in the right upper extremity. The Veteran underwent a VA peripheral nerves examination in October 2009. He reported that since his last examination in 2005, he has had pain in the upper back towards the shoulder. If he turns his head to the left, there is pain into the right arm. He also has numbness in the right hand. There is radiation of a dull pain that shoots into the right arm and hand. Complaints related to the left upper extremity were not noted. Motor examination of the upper extremities was 5/5 bilaterally. Sensory examination of the upper extremities was normal. Reflexes were normal in the upper extremities. The examiner stated that there was no diagnosed right upper extremity radiculopathy, and did not specifically address the left upper extremity. The Veteran most recently underwent a VA spine examination in September 2011. On physical examination, reflexes were hypoactive in the bilateral upper extremities. Sensory examination was normal for the left upper extremity. No symptoms of radiculopathy were noted in the left upper extremity. The examiner noted that there was mild radiculopathy on the right. No radiculopathy was noted on the left. The examiner opined that current right upper extremity radiculopathy was at least as likely as not a result of the cervical spine condition. A diagnosis of left upper extremity radiculopathy was not provided. As discussed, the Veteran complained of left upper extremity symptoms during active service and was diagnosed with radiculopathy. On his initial VA spine examination in August 2004, he stated that the pain in his left arm had cleared and was only intermittent. Military treatment facility records dated in September 2004 suggest that the radiculopathy was limited to the right upper extremity. Subsequent VA examinations and private medical records consistently refer to right upper extremity symptoms. The Board acknowledges that the Veteran is competent to report symptoms of left upper extremity radiculopathy. The mere fact that he is reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he has met the current disability due to disease or injury requirement. Rather, an underlying disease or injury is required. Despite the in-service complaints, chronic radiculopathy was not clearly shown and chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). On review, evidence of record does not show left upper extremity radiculopathy manifested to a compensable degree within one year following discharge, nor does it show current left upper extremity radiculopathy or at any time during the appeal period. This evidence clearly establishes that the appellant did not have continuity of symptomatology since the most probative evidence establishes that the disability does not exist at this time. Furthermore, in the absence of current disability, it necessarily follows that the claimed disability is not proximately due to or the result of a service-connected disease or injury. Without a current disability, service connection is not warranted. See Brammer. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER For the period prior to September 6, 2011, a 20 percent evaluation, and no more, for service-connected cervical spine disability is granted, subject to the regulations governing the award of monetary benefits. For the period beginning on September 6, 2011, an evaluation greater than 20 percent for service-connected cervical spine disability is denied. Service connection for left upper extremity radiculopathy is denied. REMAND In September 2009, the Veteran claimed entitlement to service connection for depression secondary to his cervical spine condition. In November 2009, the RO denied service connection for a chronic acquired psychiatric disorder to include depression. The Veteran disagreed with the decision and perfected this appeal. Evidence of record shows additional psychiatric diagnoses. For example, VA records dated in 2007 show adjustment disorder with mixed anxiety and depressed mood. An October 2010 private psychiatric evaluation includes a diagnosis of bipolar disorder. Accordingly, the Board has rephrased the issue as stated above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Veteran reported that he was found non-deployable due to his cervical spine disability and that he became depressed because he could not go to Iraq. The limited service records pertaining to the Veteran's last period of active duty do not document complaints of depression. However, a statement from Dr. C.A. dated in February 2004, approximately one month after discharge, notes a diagnosis of depression. It does not appear that complete service treatment records pertaining to the Veteran's most recent period of service were requested. On remand, this should be accomplished. The October 2009 VA examiner indicated that the Veteran's mood symptoms did not rise to the level of an outright mental disorder. The Veteran most recently underwent a VA psychiatric examination in April 2012. Due to gross over reporting of symptoms, the examiner could not confirm an Axis I disorder. Regardless, she opined that it was less likely as not that depressive symptoms were related to service-connected cervical spine disability. An opinion was not provided as to aggravation. The examiner also stated that "there was no continuum of treatment that would suggest that current symptoms, if they were able to be confirmed, would be related in any way to military service." The Board acknowledges the findings on VA examination. As noted, however, the record does contain psychiatric diagnoses and on review, further examination is needed. Such examination should consider any additional service treatment and/or VA medical records and should address the conflicting diagnoses of record as well as all theories of entitlement. VA medical records were last printed in April 2010. Additional relevant VA medical records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should request complete service treatment records for the Veteran's period of service from October 2003 to January 2004. Any post-service records from Walter Reed Army Medical Center should also be requested. All records obtained should be associated with the claims folder or virtual folders. The procedures set forth at 38 C.F.R. § 3.159(c)(2), with regard to Federal records, should be followed. 2. The RO should obtain relevant VA records for the period from April 2010 to the present. All records obtained should be associated with the claims folder or virtual folder. The procedures set forth at 38 C.F.R. § 3.159(c)(2), with regard to Federal records, should be followed. 3. The RO should request a VA psychiatric examination to determine the nature and etiology of any currently diagnosed psychiatric disability. The claims folder must be available for review. The examiner is requested to identify any currently diagnosed Axis I disorders and to reconcile conflicting diagnoses of record. If the Veteran is diagnosed with current psychiatric disability, the examiner is requested to provide an opinion as to whether it is at least as likely as not related to either period of active service or events therein. In making this determination, the examiner should consider the complaints of depression or excessive worry noted at separation in May 1975, as well as the diagnosis of depression noted in February 2004. If the examiner determines that any currently diagnosed psychiatric disorder is not directly related to military service, he or she should provide an opinion as to whether it is at least as likely as not caused or otherwise aggravated by service-connected cervical spine disability. If aggravation is found, the examiner is requested to provide the baseline level of severity prior to aggravation. Complete rationale must be provided for any opinion offered. 4. After the development requested has been completed, the RO should review the addendum report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO should implement corrective procedures. 5. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2013). 6. After completing all indicated development, the RO should readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include depression, bipolar disorder, and adjustment disorder. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. The Veteran 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). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs