Citation Nr: 1538564 Decision Date: 09/09/15 Archive Date: 09/18/15 DOCKET NO. 06-37 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), depression not otherwise specified (NOS), anxiety disorder NOS, and dysthymic disorder. 2. Entitlement to an initial rating in excess of 10 percent for a low back disability with lower extremity radiculopathy prior to October 13, 2011 and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1966 to May 1970. He also had prior, unverified service in the United States Naval Reserves from September 1964 to June 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2005 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a videoconference hearing in front of the undersigned Veteran's Law Judge (VLJ) in May 2015. The Veteran previously testified at an August 2009, Travel Board hearing in front of a VLJ who has since retired from the Board. Transcripts of both hearings are associated with the claims file. The issues were previously remanded by the Board in October 2009 and February 2012 for additional development. The issues have since returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the February 2012 Board remand, the Veteran was afforded a VA psychiatric examination. The February 2012 VA examiner opined that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria and provided a diagnosis of depressive disorder NOS and alcohol dependence by history. The VA examiner provided a negative nexus opinion between the Veteran's diagnosed depressive disorder and service. However, the rationale focused on the diagnosis aspect and discussed the difficulty of determining whether the Veteran's current mental health condition was induced by substance abuse. It was suggested the Veteran be re-examined after a period of abstinence of 6 to 12 months to clarify diagnosis. The Veteran, through his representative, has challenged the adequacy of the 2012 VA examination. See e.g., attorney correspondence dated May 12, 2015. The Board finds the VA examiner did not provide a clear rationale for the negative opinion provided. The Veteran testified in a May 2015 Board hearing regarding his low back disability. The Veteran was last afforded a VA spine examination in December 2011. He asserted his current condition was worse and a few years prior when it was really bad, he was referred to an orthopedic surgeon. Specifically, he reported that he could not mobilize himself to move around, severe pain prevented quick movement and his back gave out for periods of time. In a decision review officer pre-conference brief dated October 10, 2012, the Veteran asserted he had experienced incapacitating episodes of his back that had a total duration of more than four weeks following the period after his December 2011 VA examination. The Veteran's representative highlighted a June 18, 2013 VA treatment record where the Veteran had a positive straight leg test on the right side. An August 1, 2013 VA treatment record reflects that the Veteran had low back pain since the 1980s and that he presented with a worsening of low back pain. Where a veteran asserts that a disability has worsened since his/her last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). On Remand, an updated VA examination must be provided. The Board notes the August 2013 MRI reports are associated with the claims file although the Veteran's attorney has asserted they are not in the May 2015 correspondence. Accordingly, the case is REMANDED for the following action: 1. After any development deemed necessary is completed, the RO should schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's acquired psychiatric disorder(s). If possible, the file should be provided to an examiner who has not previously seen the Veteran. The examiner determines that an additional examination is necessary, an examination to address the below questions should be scheduled. The Veteran's claims file (including this remand) must be reviewed by the examiner. Based on a review of the claims file the examiner must provide a written response to the following: (a) Identify any current acquired psychiatric disorder, to include PTSD, depression NOS and anxiety disorder NOS and dysthymic disorder. In rendering these findings, the examiner must reconcile any opinion with all other evidence of record. (b) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran has any current acquired psychiatric disorder that was (1) caused by or (2) etiologically related by active duty service. 2. Schedule the Veteran for appropriate VA examination(s) to determine the symptoms and severity of his service-connected low back disability with neurological manifestations including lower extremity radiculopathy. The claims file and all relevant medical records should be made available to the examiner(s) for review. All tests and studies deemed necessary by the examiner(s) should be performed. The examiner(s) should report the range of motion of the thoracolumbar spine in degrees and comment on the presence and extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. The examiner(s) should report if there is evidence of ankylosis. The examiner(s) should also describe the frequency and length of any incapacitating episodes (e.g., requiring bedrest) in the past year. Additionally, any ankylosis of the thoracolumbar spine should be noted. The examiner(s) should note any nerves affected by paralysis, partial paralysis, neuralgia, or neuritis, and, for affected nerves, express an opinion as to the severity of such symptoms in terms of being slight, moderate, moderately severe, severe, or complete. If there is no nerve involvement, the examiner(s) should so state and reconcile any conflicting evidence of record. A complete detailed rationale should be given for all opinions and conclusions expressed. 3. Then, the RO should readjudicate the issue of entitlement to service connection for any acquired psychiatric disability to include PTSD, depression NOS and anxiety disorder NOS and dysthymic disorder and entitlement to an increased rating for a low back condition with lower extremity radiculopathy. If service connection remains denied, an appropriate SSOC should be issued and provided to the Veteran and his representative. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). _________________________________________________ MICHAEL LANE 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).