Citation Nr: 1646340 Decision Date: 12/09/16 Archive Date: 12/21/16 DOCKET NO. 13-35 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left lower extremity disorder, claimed as bilateral lower extremity pain secondary to the service-connected low back strain disability. 2. Entitlement to a higher initial disability rating in excess of 10 percent for service-connected major depressive disorder. REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1981 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a series of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an April 2013 rating decision, the RO, in pertinent part, granted service connection for major depressive disorder and assigned a 10 percent initial rating, effective November 23, 2010. In a December 2012 rating decision, the RO denied service connection for the left lower extremity disorder. This case was previously before the Board in June 2015, where the Board, in pertinent part, denied service connection for a left lower extremity disorder and denied a higher initial rating in excess of 10 percent for the service-connected major depressive disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the Veteran's representative and the Secretary of Veterans Affairs agreed to a Joint Motion for "Partial" Remand (JMR) in May 2016 that partially vacated the Board's June 2015 decision to the extent that it denied service connection for a left lower extremity disorder and a disability rating in excess of 10 percent for major depressive disorder, and remanded the case to the Board for further appellate review. The Veteran explicitly abandoned the appeal with regard to the remaining issues decided by the Board in June 2015. See May 2016 JMR p. 5 ("The remainder of the Board's decision is not contemplated by the instant motion and should remain undisturbed"). In compliance with the Court's order, the Board now remands the issues on appeal to obtain the necessary VA medical examinations and opinions. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the Joint Motion for Remand). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Service Connection for Left Lower Extremity Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (2015); 38 C.F.R. § 3.303(a) (West 2014). Further, service connection may be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran contends that service connection is warranted for bilateral lower extremity pain, stiffness, and numbness as secondary to the service-connected low back strain disability. See November 19, 2010 VA Form 21-4138. As an initial matter, the Board notes that the Veteran is already service connected for right lower extremity pain. In a February 2004 rating decision, the RO granted service connection for right lower extremity pain and assigned an initial 10 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2015), effective October 17, 2002. For this reason, the June 2015 Board decision found that the appeal for service connection for a left lower extremity disorder, claimed and developed as bilateral lower extremity pain, was more appropriately construed as an appeal only for service connection for a left lower extremity disorder. See Brokowski v. Shinseki, 23 Vet. App. 79, 84-85 (2009). This finding was not raised or challenged before the Court, and was not subject of the JMR and Court order. Next, the Veteran received a VA examination in May 2011. The May 2011 VA examination report reflects that the Veteran reported pain and numbness in the left leg. The May 2011 VA examiner diagnosed bilateral lower extremity neuropathy after conducting an x-ray examination and performing several physical tests. At the conclusion of the examination, the VA examiner opined that he or she was unable to determine if the currently diagnosed left lower extremity neuropathy was related to the service-connected back disability without resorting to mere speculation. No rationale was provided. Service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2015); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Addressing the arguments made by the Parties of the JMR, a remand is necessary for a new examination and opinion that adequately addresses whether the left lower extremity disability is secondary to the service-connected low back strain. Initial Rating for Major Depressive Disorder The Veteran asserts that a rating in excess of 10 percent is warranted for the service-connected major depressive disorder. Service connection for major depressive disorder was granted by the RO in an April 2013 rating decision, which assigned an initial 10 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9434 (2015), effective November 23, 2010. The June 2015 Board decision found that the weight of the evidence was against a rating in excess of 10 percent for the service-connected major depressive disorder; however, as noted within the May 2016 JMR, there is at least some favorable evidence which suggests higher rating criteria, which the Board's June 2015 decision did not discuss. The Parties agreed that the omission of Global Assessment of Functioning (GAF) scores in the range of 51-60, indicating "moderate symptoms," rendered the Board's reasons and bases inadequate. See January 2004, October 2004, February 2006, December 2006, and May 2009 treatment records (reflecting GAF scores of 55, 60, 60, 60, and 55, respectively). Additionally, the May 2011 VA examiner did not take into account the complete psychiatric symptomatology, to include the various GAF scores in the range of 51-60. Moreover, subsequent to the May 2011 VA examination, statements from the Veteran indicate additional or increased psychiatric symptomatology. See Appellant's 2016 Brief; see also See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, based on the above, the Board finds that remand is necessary to schedule a new VA mental health examination to help determine the current nature and severity of service-connected major depressive disorder. In conducting such examination, the examiner should take into account the Veteran's complete psychiatric symptomatology based on the service-connected major depressive disorder, to include the various GAF scores ranging from 51 to 60. If the examiner assesses additional diagnoses, the examiner should attempt to measure the psychiatric symptomatology attributable solely to the Veteran's service-connected major depressive disorder. See Mittleider v. West, 11 Vet. App. 181 (1998) (when the effects of a service-connected disability have not been clinically disassociated from those of a nonservice-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability). Treatment Records VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the appeal. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The record reflects that the Veteran has previously received both VA and private treatment. On remand, the AOJ should attempt to obtain any relevant outstanding VA and private treatment records concerning the remanded issues that are not already of record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to any private medical treatment for the service-connected major depressive disorder and the left lower extremity neuropathy. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation pertaining to the treatment of such disabilities, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2015). 2. Associate with the record all VA treatment records pertaining to the treatment of the service-connected major depressive disorder and the left lower extremity neuropathy. 3. Schedule a VA examination to help ascertain the etiology of the currently diagnosed left lower extremity neuropathy. The relevant documents from the record should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. An interview of the Veteran regarding history, a physical examination, and all tests and studies required to respond to the following questions should be performed. Based on review of the appropriate records, the VA examiner should offer opinions on the following questions: A) Is it as likely as not (i.e., probability of 50 percent or more) that the left lower extremity neuropathy was caused by the service-connected back disability? B) Is it as likely as not (i.e., probability of 50 percent or more) that the left lower extremity neuropathy was aggravated by (that is, worsened in severity beyond a normal progression) the service-connected back disability? In rendering secondary service connection opinions, if it is the examiner's opinion that there is aggravation of the claimed right or left lower extremity neuropathy, he or she should identify the baseline level of severity of the disability prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. "Aggravation" is defined for legal purposes as a worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its normal progression. 4. Schedule a VA mental health examination in order to assist in determining the current severity of the service-connected major depressive disorder. The relevant documents from the record should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. The examiner should confirm review of the record in the examination report. 5. After completing all indicated development, the RO should readjudicate the issues of service connection for a left lower extremity disorder and a higher initial rating for service-connected major depressive disorder in light of all the evidence of record. If the benefits sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). _________________________________________________ J. Parker 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).