Citation Nr: 1549644 Decision Date: 11/24/15 Archive Date: 12/03/15 DOCKET NO. 10-27 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include as secondary to his service-connected disabilities. 2. Entitlement to service connection for a disability manifested by left elbow and upper arm numbness to include as secondary to his service-connected degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from December 1997 to December 2001. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified during a hearing before the undersigned Veterans Law Judge in April 2014. A transcript of the hearing is of record. The Board remanded the issue of entitlement to a psychiatric disorder in March 2015 for further development. The RO continued the denial of the claim as reflected in the June 2015 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. The Board denied entitlement to service connection for left elbow and upper arm numbness in a March 2015 Board decision. The Veteran appealed this portion of the Board's March 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2015, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Partial Remand (Joint Motion). The Court granted the motion in a September 2015 order, vacated the portion of the Board's March 2015 decision that denied entitlement to service connection for left elbow and upper arm numbness, and remanded the matter to the Board for action consistent with the Joint Motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded the Veteran's service connection claim in March 2015 to obtain a VA examination and to provide a medical opinion on whether any psychiatric disability found in the record or during the examination is at least as likely as not related to active military service. The Veteran was provided with a VA examination in March 2015. With respect to whether the Veteran's adjustment disorder is at least as likely as not related to the Veteran's service-connected disabilities, the examiner determined that she cannot resolve the issue without resort to mere speculation. The examiner explained that the Veteran cancelled his neuropsychological evaluation and she is not a neuropsychologist. The Veteran submitted a letter in June 2015 asserting that he did not receive a letter informing him of the scheduled neuropsychological examination. He received a phone call reminding him of the appointment the day before the scheduled examination and that did not provide him enough time to request time off from work. The RO did not reschedule the Veteran's examination. In light of the foregoing, a remand is necessary to schedule a neuropsychological examination in order to adequately evaluate the Veteran's service connection claim for a psychiatric disorder. With respect to the Veteran's service connection claim for a disability manifested by left elbow and upper arm numbness, the Joint Motion noted that the evidence of record reasonably raises the possibility that the Veteran experienced left elbow and upper arm numbness during the appeal period as a consequence of medication prescribed for his service-connected headaches. As directed in the Joint Motion, a remand is necessary to obtain a VA medical opinion with respect to whether the Veteran has a disability characterized by left elbow and upper arm numbness at any time during the appeal period due to medication prescribed for his service-connected headaches. The Board notes that when scheduling the examination make sure that the written notification is sent to the most recent address of record in the claims file. Correspondence from the Veteran dated in June 2015 reflects that the Veteran's current address is different than the contact information listed in the VBMS virtual claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and elicit from him the appropriate information and consent to obtain all outstanding VA and/or private treatment records with respect to his service connection claims on appeal. Attempt to obtain all such treatment records that have not been previously obtained and associated with the claims file. 2. After completing the foregoing and associating any outstanding evidence with claims file, schedule the Veteran with a VA neuropsychological examination with respect to the Veteran's service connection claim for a psychiatric disorder. Prior to the examination, the claims file and a copy of this remand must be made available to the examiner for review of the case and the examiner should note in the record that such review took place. The examiner is directed to administer all necessary testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the Veteran's diagnosis of adjustment disorder with depressed mood and any other psychiatric disorders found on examination. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to identify all of the Veteran's psychiatric disorders and provide an opinion on the following: a. Whether it is at least as likely as not (i.e., a 50 percent or more probability) that the Veteran's adjustment disorder with depressed mood and any other psychiatric disorder(s) found on examination or in the medical record had its onset during, or is otherwise related to the Veteran's active military service to include the traumatic brain injury from a heavy missile falling on his head. In determining whether the Veteran has a psychiatric disorder that is related to service, the examiner is asked to review and discuss the lay statements from the Veteran in the claims file and during the examination and the medical evidence of record. The examiner should provide an explanation for all conclusions reached. b. If the answer to (a) is negative, then whether it is at least as likely as not (i.e., a 50 percent or more probability) that the adjustment disorder with depressed mood and any other psychiatric disorder(s) found on examination or in the medical record is at least in part caused by or aggravated (chronically worsened) by the Veteran's service-connected disabilities. The examiner should provide an explanation for all conclusions reached. 3. After completing directive (1) and associating any outstanding evidence with claims file, schedule the Veteran for a VA examination by an appropriate specialist to evaluate the Veteran's service connection claim for a disability manifested by left elbow and upper arm numbness. The claims file, including a copy of this remand, must be made available to the examiner for review and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to the following: a. Whether the Veteran has a disability manifested by left elbow and upper arm numbness (now or any time during the appeal period) that is at least as likely as not (i.e., a fifty percent or greater probability) caused by or aggravated (chronically worsened) by his service-connected degenerative joint disease of the cervical spine. b. If the answer to question (a) is negative, then whether the Veteran has a disability manifested by left elbow and upper arm numbness (now or any time during the appeal period) that is at least as likely as not (i.e., a fifty percent or greater probability) caused by or aggravated (chronically worsened) by medication prescribed for his service-connected headaches. The examiner should provide an explanation for all conclusions reached. 4. Upon completion of the foregoing, readjudicate the service connection claims for a psychiatric disorder and a disability manifested by left elbow and upper arm numbness based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the appellant and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant 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 2014). _________________________________________________ MILO H. HAWLEY 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) (2015).