Citation Nr: 1602499 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 10-30 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for tremors, to include as secondary to medication used to treat a service-connected disability. 3. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1986 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009, January 2010, and September 2010 rating decisions of the VA Regional Office (RO) in Lincoln, Nebraska. A Board decision in August 2014 denied the issues of service connection for an acquired psychiatric disorder and tremors; denied increased ratings for the lumbar spine disability and an eye disability; and denied entitlement to a separate disability rating for neurological manifestations of the service-connected lumbar spine disability other than the service-connected left lower extremity radiculopathy. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) insofar as he disagreed with the denials of service connection for an acquired psychiatric disorder and tremors and an increased rating for the lumbar spine disability. He did not appeal the remaining two issues. In an Order dated in April 2015, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to the three issues appealed and remand the case for readjudication in accordance with the JMPR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary. Beginning with the service-connection issues, the Veteran was afforded a VA examination for his claimed psychiatric disorder in August 2013. He was diagnosed with bipolar disorder and a negative nexus was provided. In providing a negative opinion, the examiner opined that the Veteran "appeared to have functioned well in a highly structured environment in the military." However, the examiner did not address the transcripts of tapes where the Veteran described his thoughts and symptoms in service, as well as letters to his wife during service that discussed his symptoms. Such evidence shows that the Veteran reported symptoms of feeling nervous, depressed, frustrated, and frightened. They also include statements such as he did not want to die while stationed abroad. Therefore, a remand is necessary to afford the Veteran a new VA examination that addresses this evidence. As for the Veteran's tremors, he was also provided an examination for that disorder in August 2013. The examiner opined that it was at least as likely as not that the Veteran's benign tremors were secondary to treatment of bipolar disorder. Therefore, this issue is inextricably intertwined with the issue of service connection for an acquired psychiatric disorder and must also be remanded. Lastly, as regards the Veteran's lumbar spine, he was last afforded a VA examination in April 2014. The Veteran reported flare-ups that impacted his ability to function. The examiner opined that flares could cause additional loss of motion, but actual additional loss could not be determined unless an examiner was present to objectively measure any additional loss. However, the examination report does not show that the examiner asked the Veteran about his perceived limitations in motion during a flare-up. Consequently, the Board concludes that a new examination that addresses any reported loss of motion during flare-ups should be afforded to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Procure records of post-service treatment that the Veteran has received. The Board is particularly interested in records of treatment received from the VA Nebraska-Western Iowa Health Care System. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Accord the Veteran an examination to determine the nature, extent, and etiology of any diagnosed acquired psychiatric disorder. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to the whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed acquired psychiatric disorder is related to his military service. The examiner should address the transcription of the tapes where the Veteran described his thoughts and symptoms in service as well as letters to his wife during service that discussed his symptoms. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinions, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected lumbar spine disability. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to report all pertinent manifestations and symptomatology of the service-connected lumbar spine disability. The examiner should: A) Provide the range of motion of the Veteran's thoracolumbar spine and comment on the degree of functional losses such as pain, weakness, excess fatigability, incoordination, and flare-ups. All functional losses should be equated to additional loss of motion (beyond that shown clinically). The examiner should ask the Veteran to discuss how his range of motion is limited during a flare-up. B) Discuss any associated ankylosis (favorable or unfavorable) of the Veteran's thoracolumbar spine, any unfavorable ankylosis of his entire spine, as well as the frequency (in the past 12 months) of any incapacitating episodes. See 38 C.F.R. § 4.71a, Note 1 following Diagnostic Code 5243 [an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician]. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinions, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Ensure that the examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issues remaining on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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 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).