Citation Nr: 1502046 Decision Date: 01/15/15 Archive Date: 01/27/15 DOCKET NO. 12-27 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left leg condition, claimed as radiculopathy, to include as secondary to a service-connected back disability. 2. Entitlement to service connection for a cervical spine disorder, claimed as cervical spine degenerative disc disease/neck pain, to include as secondary to a service-connected low back disability. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and July 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed all pertinent evidence in the Veteran's claims file, including all relevant evidence contained in her Virtual VA and the Veterans Benefits Management System (VBMS) efolders. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a left leg disorder, claimed as radiculopathy, as well as a cervical spine disorder. She claims that these conditions are secondary to her already service-connected low back disability. Missing VA and Private Medical Records The Board notes that VA and private medical records concerning treatment for the Veteran's back disorders appear to be missing from the file. The Veteran reported receiving treatment from the VA Outpatient Clinic in Jacksonville, Florida, and the July 2010 VA examination report discusses records from the VA Medical Center in Gainesville, Florida from as early as 2008. See January 2010 Claim; see also Authorization and Release received July 2010; July 2010 VA Examination Report. Additionally, the record shows that the Veteran has continued to receive treatment from the VA and private medical providers; however, these records have not been associated with the claims file. The Veteran's VA and private records must be obtained on remand. See 38 U.S.C.A. § 5103A(a)-(c) (2014). Inadequate VA Examination The Veteran was afforded a VA examination in July 2010 concerning her back and left leg disorders. The Board finds that the July 2010 VA examination is not adequate for rating purposes and that another VA examination is necessary. First, although the Veteran claimed service connection for a cervical spine disorder as secondary to her already service-connected low back disability, the July 2010 VA examiner failed to address secondary service connection in the opinion. The examiner also did not address whether the Veteran's service-connected low back disability aggravated her cervical spine disorder. This is significant because in El-Amin v. Shinseki, 26 Vet. App. 136 (2013), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a claimed disability was aggravated by a service-connected disability. Thus, remand is necessary to provide the Veteran with an opinion as to whether her cervical spine disorder is caused or aggravated by her service-connected low back disability. Additionally, a new examination is necessary in connection with the Veteran's claimed left leg disorder. Based on a physical examination of the Veteran and a review of the results from a 2008 electromyogram, the July 2010 VA examiner determined that she did not have left leg radiculopathy. See July 2010 VA Examination Report. Thus, the examiner did not provide an opinion as to whether her left leg disorder was caused or aggravated by her service-connected low back disability. See id. Although the Veteran did not exhibit objective evidence of left leg radiculopathy during the July 2010 examination, the record shows ongoing complaints of shooting pain in her left leg, and there are references suggesting that her treating VA physicians have diagnosed her as having lower extremity radicular pain. See June 2010 VA Examination (discussing December 2008 VA Medical Record); see also July 2014 VA Medical Record ("problem list" includes thoracic or lumbosacral neuritis or radiculitis). As such, it appears that the Veteran has a left leg disorder, even if it is not radiculopathy. Thus, on remand, a new examination should be provided for the VA examiner to discuss all left leg disorders exhibited by the Veteran. The VA examiner should specifically review and comment on the medical records concerning the Veteran's left leg "radiculopathy," and explain whether any left leg disorder, radiculopathy or otherwise, is etiologically related to the Veteran's service or her service-connected back disability. The Board further notes that the July 2010 examination is inadequate for failure to review all of the relevant medical evidence of record. The July 2010 examination report notes that there were no private medical records concerning treatment for her back, neck and/or leg symptoms, and further states that the first complaint of neck pain was in 2004. The claims file, however, contains private treatment records from 1995 concerning the Veteran's complaints of chronic low back pain and neck pain. See February 1995 Medical Record. On remand, the VA examiner should review and consider the Veteran's private treatment records in providing a nexus opinion. See 38 C.F.R. § 3.159(c)(4)(i) (a VA examination and opinion should consider all relevant evidence of record). Statement of the Case Concerning Psychiatric Claims The Veteran also seeks service connection for anxiety, depression and/or PTSD. The Board notes that the RO considered these claims separately; however, claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, the Board has recharacterized the Veteran's claims as stated above. In September 2014, the Veteran submitted a timely notice of disagreement to the July 2014 rating decision denying service connection for a psychiatric disorder. As the RO has not yet issued a Statement of the Case (SOC) with respect to this claim, the Board must remand the claim for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran and her representative a statement of the case regarding the issues of entitlement to service connection for a psychiatric disability, including PTSD. 2. Obtain all outstanding VA and private medical records concerning the Veteran's treatment for her back condition and left leg disorder including, but not limited to, the records from the VA Outpatient Clinic in Jacksonville, Florida and the VA Medical Center in Gainesville, Florida, from 2008 to the present. 3. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service back and left leg symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any outstanding VA and private medical records, schedule the Veteran for an appropriate VA examination to address the current nature and etiology of her cervical spine and left leg disorders. The entire record (i.e., the paper claims file and all additional documents contained in Virtual VA and the Veterans Benefits Management System) should be made available to, and reviewed by, the examining VA clinician(s), and examination report(s) should note that such evidentiary review took place. After a review of the record on appeal and an examination of the Veteran, the examiner should state all diagnosed cervical spine and left leg disorders and provide answers to the following questions: a. Is it at least as likely as not that the Veteran's left leg disorder is related to or had its onset in service? b. Is it at least as likely as not that the Veteran's cervical spine disorder and/or left leg disorder were caused by her service-connected low back disability? c. Is it at least as likely as not that the Veteran's cervical spine disorder and/or left leg disorder were aggravated (permanently worsened) by her service-connected low back disability? In answering these questions, the examiner(s) should acknowledge and discuss the Veteran's own assertions, and any other evidence of record addressing the observable symptoms associated with her reported cervical spine and left leg disorders. Specifically, the examiner should acknowledge and discuss the Veteran's private medical records contained in the claims file, including those from February-April 1995, as well as the November 2010 statement of Dr. Donald Dodd. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A complete rationale for all findings and conclusions should be set forth in a report. 5. Then readjudicate the matters on appeal. If any of the benefits sought on appeal remain denied, furnish the Veteran and her representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. 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 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).