Citation Nr: 1610266 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 14-07 231A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date earlier than May 9, 2011, for the grant of service connection for left leg radiculopathy. 2. Entitlement to an effective date earlier than January 19, 2011, for the grant of a 40 percent rating for right leg radiculopathy. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for a chronic disability manifested by fecal incontinence. 6. Entitlement to service connection for a stomach disorder to include gastroesophageal reflux disease (GERD). 7. Entitlement to an initial compensable evaluation for left leg radiculopathy 8. Entitlement to an increased rating for right leg radiculopathy rated as 40 percent disabling. 9. Entitlement to an increased rating for a low back disability rated as 20 percent disabling. 10. Entitlement to a higher initial evaluation a depressive disorder rated as 30 percent disabling. 11. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James. G. Fausone, Attorney ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to August 1979. This matter comes to the Board of Veterans' Appeal (Board) on appeal from April 2010 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board notes that correspondence found in the record reflect that the Veteran received vocational rehabilitation services from VA. See March 2009 letter from VA's vocational rehabilitation service. However, the VA vocational rehabilitation file has not been associated with the other VA claims file. Thus a remand is required to obtain these records. See 38 U.S.C.A. § 5103A(b) (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Indeed, the Board has no discretion and is required to do. See also Sullivan v. McDonald, No. 2015-7076, 2016 WL 877961 (Fed. Cir. Mar. 8, 2016). As to the claims of service connection for a neck disability, headaches, a chronic disability manifested by fecal incontinence, and for a stomach disorder to include GERD, the Veteran claims that these disabilities were due to his service-connected low back disability, to include the medications he takes to treat his low back disability. Moreover, the record shows that in September 2009 and/or December 2013 the Veteran was afforded VA examinations to obtain medical opinions as to the origins of his neck disability, fecal incontinence, and the stomach disorder. However, the Board does not find the opinions provided by those examiners adequate because they failed to adequately address the question of aggravation. See 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (holding that compensation is also payable when service-connected disability has aggravated a non-service-connected disorder). As to the headaches, the Board finds that an etiology opinion is required given the record but VA has not as yet obtained the opinion. Therefore, the Board finds that a remand is required to obtain these needed medical opinions. See 38 U.S.C.A. § 5103A(d) (West 2014); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). As to the claims for higher evaluations for left and right leg radiculopathy, the low back disability, and the depressive disorder, given the above development the Veteran should be afforded new VA examinations to ascertain the current severity of these disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider his pertinent medical history). Accordingly, the appeal is REMANDED to the AOJ for the following actions: 1. Associate with the claims file the Veteran's vocational rehabilitation file. All actions to obtain the requested records should be documented fully in the claims file. 2. Associate with the claims file all of the Veteran's post-August 2015 treatment records from the Marion VA Medical Center. 3. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 4. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of in-service problems with a neck disability, headaches, fecal incontinence, and a stomach disorder and any continued problems since that time as well as any current problems caused by his service-connected left and right leg radiculopathy, low back disability, and depressive disorder to include problems with employment. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 5. Provide the Veteran with a VA examination to determine the origins of his neck disability. The claims folder must be made available to and reviewed by the examiner. After a review of the claims file and an examination of the Veteran, the examiner should respond to the following questions: (a) What are the diagnoses of the Veteran's neck disabilities? (b) As to each diagnosed neck disability, is it at least as likely as not that it is related to or had its onset in service and/or has continued since that time? (c) If the Veteran's diagnosed neck disabilities include arthritis, is it at least as likely as not that it manifested itself to a compensable degree in the first post service year? (d) As to each diagnosed neck disability, is it at least as likely as not that it was caused or aggravated (i.e., permanently worsened) by the Veteran's service-connected low back disability, including the medications he takes for his low back disability? In providing the requested opinions, the examiner should comment on the Veteran's competent lay reports. In providing the requested opinions, the examiner cannot rely solely on negative evidence. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Provide the Veteran with a VA examination to determine the origins of his headaches. The claims folder must be made available to and reviewed by the examiner. After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions: (a) Is it at least as likely as not that his headaches are related to or had their onset in service? (b) Is it at least as likely as not that his headaches were caused or aggravated (i.e., permanently worsened) by any of the Veteran's service-connected disabilities, including the medications he takes for his service-connected low back disability and/or his depressive disorder? In providing the requested opinions, the examiner should comment on the Veteran's competent lay reports. In providing the requested opinions, the examiner cannot rely solely on negative evidence. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Provide the Veteran with a VA examination to determine the origins of any chronic disability manifested by fecal incontinence and a stomach disorder to include GERD. The claims folder must be made available to and reviewed by the examiner. After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions: (a) What are the diagnoses of the Veteran's chronic disability manifested by fecal incontinence and stomach disorder? (b) As to each diagnosed chronic disability manifested by fecal incontinence and stomach disorder, is it at least as likely as not that it is related to or had its onset in service? (c) As to each diagnosed chronic disability manifested by fecal incontinence and stomach disorder, is it at least as likely as not that it was caused or aggravated (i.e., permanently worsened) by any of the Veteran's service-connected disabilities, including his low back disability and/or the medications he takes for his low back disability and/or his depressive disorder? In providing the requested opinions, the examiner should comment on the Veteran's competent lay reports. In providing the requested opinions, the examiner cannot rely solely on negative evidence. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 8. After undertaking the above development to the extent possible, provide the Veteran with an examination to determine the current nature, extent, and severity of his low back disability as well as his left and right leg radiculopathy. After a review of the record on appeal and an examination of the Veteran, the examiner should provide VA with the following information. Musculoskeletal: i. The examiner should conduct complete range of motion of the low back with specific findings as to flexion, extension, rotation, and side to side bending. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion of the Veteran's low back, i.e., the extent of the Veteran's pain-free motion, to specifically include if his pain was not ameliorated by his medication regimen. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). ii. In providing the requested opinions regarding the range of motion of the low back, the examiner must also comment on any reports of flare-ups to include describing, if possible, any additional degrees of limited motion of the low back during these flare-ups. iii. In addition, the examiner should state whether the low back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. iv. Further, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has any bowel or bladder problems caused or aggravated (i.e., permanently worsened) his low back disability. Neurological: i. The examiner should discuss the nature and severity of his left and right sided radiculopathy. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 9. After undertaking the above development to the extent possible, provide the Veteran with a psychiatric examination to determine the current nature, extent, and severity of his depressive disorder. The claims file should be made available to and reviewed by the examiner. Psychiatric testing should be conducted. The examiner should thereafter discuss the current severity of the Veteran's depressive disorder and the impact of all of his current symptoms on his social and occupational functioning. The examination report must include a complete rationale for all opinions expressed. 10. Then, after conducting any further development deemed warranted, adjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) that gives them notice of all the evidence added to the record since the February 2014 SOC. The Veteran and his representative should be given an appropriate opportunity for response before returning the appeal to the Board. 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 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 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).