Citation Nr: 1634504 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 10-19 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for lumbar disc disease. 2. Entitlement to service connection for an acquired psychiatric disorder other than major depressive disorder with generalized anxiety disorder with panic attacks, to include posttraumatic stress disorder (PTSD) and bipolar disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran, her husband, and her friend ATTORNEY FOR THE BOARD Dominic Jones, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1987 to December 1995 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which continued a 10 percent rating for the Veteran's back disability and denied service connection for PTSD and bipolar disorder. The Veteran subsequently perfected an appeal as to such issues. Relevant to the characterization of the Veteran's claim for service connection for an acquired psychiatric disorder, such was originally adjudicated as two separate claims for service connection for PTSD and bipolar disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the record and the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, as reflected on the title page. Furthermore, as service connection is already in effect for major depressive disorder with generalized anxiety disorder with panic attacks, such disability has been excluded from the characterization of the issue. In April 2016, the Veteran, her husband, and her friend testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. At the Board hearing, the record was held open an additional 90 to allow the Veteran to submit additional evidence. Thereafter, such evidence was received in June 2016. While additional evidence, to include that submitted by the Veteran, has been associated with the record since the issuance of the April 2015 supplemental statement of the case and she has not waived Agency of Original Jurisdiction (AOJ) consideration of it, as her claims are being remanded, the AOJ will have an opportunity to review all the newly received evidence such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran contends that her back disability warrants a rating higher than 10 percent due to the constant pain she is in from her lumbar disc disease. In this regard, Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to ascertain the nature and severity of her back disability. The record reflects that she last underwent a VA examination referable to such disability in June 2008. However, at her April 2016 Board hearing, the Veteran reported that she had an L4, L5, and S1 fusion and laminectomy as recently as September 2014. Furthermore, the Veteran reported her doctor had diagnosed her with failed back syndrome and that she can now only bend forward at the hips. She also reported back spasms, radiculopathy of both lower extremities, and urinary incontinence. The Board finds that there is a strong suggestion of worsening in the Veteran's condition since her last VA examination. Therefore, she should be afforded a VA examination to determine the current nature and severity of her service-connected lumbar disc disease. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, the Board notes that, as a result of a VA examination conducted in June 2016, an August 2016 rating decision awarded service connection for left lower extremity radiculopathy as associated with the Veteran's back disability with a 10 percent rating, effective April 6, 2016. However, service connection for right lower extremity radiculopathy was denied on the basis that the June 2016 VA examination revealed no symptoms of radiculopathy on the right side. A review of such examination report reflects that the examiner reviewed the findings from a January 2015 EMG/NCV study that revealed electrophysiologic abnormalities suggestive of a mild chronic right lumbosacral nerve root compromise most likely at the S1 level requiring clinical correlation. As such, in conducting the examination on remand, the examiner will be requested to reconcile the findings of the January 2015 EMG/NCV study with lack of findings on examination with regard to the presence of right lower extremity radiculopathy. With regard to her claim for service connection for an acquired psychiatric disorder, the Veteran contends that her claimed PTSD may be due to military sexual trauma she experienced during her period of service, or possibly traumatic incidents of interacting with dead bodies. She also contends her previously diagnosed bipolar disorder may be related to her military service. As an initial matter, the Board notes that a review of the record reveals that the Veteran was provided general notice as to what information is required to substantiate a claim for service connection, but not the specific notice required for service connection claims for PTSD based on personal assault or military sexual trauma. As such, on remand, she should be appropriately advised. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999); see also 38 C.F.R. § 3.304(f)(5). In a June 2008 statement, the Veteran reported a PTSD stressor in the form of having to move dead bodies from an ambulance to a transport back to the United States. One of these incidents involved moving the body of a dead child who had been killed in a fiery car accident. Yet another reported incident involved the Veteran having to remove the clothes of a soldier that had been killed in a motorcycle accident. Still another incident involved moving a body that had been pulled from underwater. However, in July 2009 and August 2009, VA issued a formal finding of lack of information to corroborate the Veteran's stressors that were not related to personal assault. In a July 2008 statement, the Veteran recounted several traumatic incidents of sexual trauma. Specifically, she reported that the first incident occurred during basic training when a superior officer made her expose herself to him. Next, the Veteran reported an incident involving a friend with whom she was sharing a tent having to perform sexual favors for a superior officer. Furthermore, she reported an incident in which a superior officer forced himself on her while she was stationed at Fort Gordon. Yet another incident occurred once the Veteran was stationed in Germany in which yet another superior officer sexually harassed her. Similarly, in additional written statements and at her April 2016 Board hearing, the Veteran reported numerous incidents involving sexual harassment, assault, and rape. The Veteran underwent a VA PTSD examination in October 2009, at which time the examiner found that she did not meet the diagnostic criteria for PTSD. Rather, she diagnosed depression and anxiety disorders. The examiner stated that she could not resolve whether the Veteran's claimed PTSD was due to military sexual trauma without resort to mere speculation. Indeed, the rationale given by the examiner was that, though the Veteran had reported multiple incidents of personal assault, verification was needed as to whether the assaults occurred. Additionally, the examiner noted that the Veteran had a historical diagnosis of bipolar, but was not able to deduce whether the Veteran had that diagnosis presently. However, with respect to a PTSD personal assault case, an after-the-fact medical opinion can serve as credible supporting evidence of the reported stressor. See 38 C.F.R. § 3.304 (f)(5); Patton v. West, 12 Vet. App. 272, 280 (1999). Thus, another VA examination is required to determine whether any of the Veteran's diagnosed acquired psychiatric disorders, to include PTSD and bipolar disorder, had their onset during, or are otherwise related to, the Veteran's military service. Additionally, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained. In this regard, she testified that she received VA treatment for her acquired psychiatric disorder from the facilities located in Oklahoma City (1995 to 2000), Topeka (2000-2007), and Corpus Christi and Temple (2007 to the present). Furthermore, she indicated that all of her treatment for her back disability has been provided by private physicians. Thereafter, all identified records should be obtained. Finally, in the readjudication of the Veteran's claims, the AOJ should consider the entirety of the evidence, to include the records received since the issuance of the April 2014 supplemental statement of the case. Accordingly, the case is REMANDED for the following action: 1. With regard to her claim for service connection for an acquired psychiatric disorder, furnish to the Veteran a letter informing her that evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault, to include records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy, and that evidence of behavior changes following the claimed assault, to include a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes, is one type of relevant evidence that may be found in the mentioned sources, as outlined in 38 C.F.R. § 3.304(f)(4) and in accordance with Patton, supra. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. In this regard, the AOJ should ensure that all VA treatment records referable to the Veteran's treatment for her acquired psychiatric disorder are of record, to include those from the facilities located in Oklahoma City (1995 to 2000), Topeka (2000-2007), and Corpus Christi and Temple (2007 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination to determine the current severity of her service-connected lumbar disc disease. The record and copy of this remand must be made available to and reviewed by the examiner. The examiner should conduct all necessary testing so as to ascertain the nature and severity of such service-connected disability. Examination findings should be reported to allow for application of pertinent rating criteria for the back. The examiner should record the range of motion observed on clinical evaluation. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. If there is clinical evidence of pain on motion, the examiner should indicate the degree at which such pain begins. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. The examiner should also indicate whether the Veteran's back disability results in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should further indicate whether the Veteran's back disability has any associated objective neurologic abnormalities, other than her already service-connected left lower extremity radiculopathy, to include right lower extremity radiculopathy, or bladder or bowel incontinence. In this regard, the examiner should identify the nerve affected and the severity of the impairment. The examiner is also requested to reconcile the January 2015 EMG/NCV study that revealed electrophysiologic abnormalities suggestive of a mild chronic right lumbosacral nerve root compromise most likely at the S1 level requiring clinical correlation, as well as the Veteran's complaints of right-sided numbness, with the June 2016 VA examination that revealed no symptoms of radiculopathy on the right side. The examiner should describe the functional impact that the Veteran's lumbar disc disease has on her daily life and employment. The examination report should include a complete rationale for all opinions expressed. 4. Schedule the Veteran for an examination to determine the nature and etiology of her claimed acquired psychiatric disorders other than major depressive disorder with generalized anxiety disorder with panic attacks, to include PTSD and bipolar disorder. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (A) The examiner should identify all of the Veteran's acquired psychiatric disorders other than major depressive disorder with generalized anxiety disorder with panic attacks that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-5) criteria. The examiner should specifically indicate whether the Veteran has, at any time since April 2008, met the criteria for a diagnosis of bipolar disorder. (B) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD based upon her claimed in-service sexual harassment, assault, and rape. (C) For each diagnosed acquired psychiatric disorder other than major depressive disorder with generalized anxiety disorder with panic attacks and PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during, or is otherwise related to, the Veteran's military service. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 6. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence associated with the record since the issuance of the April 2014 supplemental statement of the case. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims 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). _________________________________________________ A. JAEGER 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).