Citation Nr: 1718924 Decision Date: 05/30/17 Archive Date: 06/06/17 DOCKET NO. 11-31 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for blepharospasm. 2. Entitlement to an initial rating in excess of 10 percent for spasmodic dysphonia. 3. Entitlement to an initial rating in excess of 10 percent for spasmodic torticollis of the cervical spine with degenerative arthritis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J.T.Stallings, Associate Counsel INTRODUCTION The Veteran had active service from June 1976 to September 1984 and from August 1999 to September 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction rests with the RO in Houston, Texas as the Veteran resides within the jurisdiction of the RO. This case was previously before the Board September 2014, when a 100 percent schedular rating for hypothyroidism was granted, effective October 1, 2010 and entitlement to a rating in excess of 30 percent for blepharospasm with spasmodic torticollis and entitlement to a rating in excess of 10 percent for spasmodic dysphonia were remanded for additional development. Additionally, an August 2015 rating decision granted a separate 10 percent evaluation for spasmodic torticollis of the cervical spine with degenerative arthritis effective October 1, 2010. This disability was previously considered with service-connected blepharospasm and thus is also on appeal. Most recently, the claim was remanded by the Board in April 2016 for a medical examination, opinion and records vital to the claim. Jurisdiction has now returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure proper development regarding the Veteran's claim on appeal. VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2016); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, the United States Court of Appeals for Veteran's Claims (Court) has held that it is within VA's duty to assist to afford the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the claimed disability has worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). As noted above, these matters were most recently remanded by the Board in April 2016 in order to obtain a VA examination and medical opinion of the Veteran's service connected blepharospasm, spasmodic dysphonia and spasmodic torticollis of the cervical spine with degenerative arthritis including the severity levels of each based on their frequency, severity and muscle groups effected. Although the examination was completed, the medical opinion is inadequate as it fails to address the individual severity level of each individual diagnosed disability on appeal. The Board acknowledges that the Veteran's service-connected disabilities share similar symptomology, but an adequate opinion should be provided for each disability separately. If the disabilities' severities and/or symptomology cannot be separately assessed as mild, moderate or severe based on the individual frequency, severity and muscle groups affected, that must be addressed in the examiner's opinion as well. Although, the examiner acknowledges the claims record was reviewed there is little rationale or explanation given to the findings in the opinion. Also, one of the directives of the April 2016 Board Remand required the RO to obtain updated records from Brooke Army Medical Center where the Veteran was receiving treatment for all of her service-connected disabilities that are currently on appeal. As stated in the April 2016 Board remand, there are treatment records from the Brooke Army Medical Center most recently dated in May 2015 of record; however, the Board is unclear as to whether such records are complete or if the Veteran has received more recent treatment. As the Veteran is claiming a worsening of her disabilities, complete treatment records should be obtained, to the extent possible. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). The Veteran's representative has also requested help in obtaining these records. There was one recorded attempt by the RO to obtain these records following the April 2016 remand, but the RO was unable to acquire the records due to consent issues. As these records were not retrieved prior the VA examiner providing the May 2016 opinion of the Veteran's disabilities, the opinion was given without a review of the completed claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain updated treatment records for the Veteran, since May 2015, from the Brooke Army Medical Center, with the necessary authorization from the Veteran if warranted. All attempts to obtain these records must be documented in the claims file. The Veteran and her representative must be notified of any inability to obtain the requested documents. 2. The same examiner from the May 2016 opinion, if possible, should also provide an opinion to the following: a). Discuss the symptomology of each of the Veteran's service-connected disabilities of blepharospasm, spasmodic dysphonia, spasmodic torticollis of the cervical spine with degenerative arthritis, specially addressing how each of them individually manifests. The examiner's opinion should be based on the Veteran's complete record and all findings must be supported by adequate rationale. b.)If individual manifestations and/or symptomology cannot be assigned to each disability, the examiner is to address that as well, explaining why they cannot be separated. 3. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant 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 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. P. SIMPSON 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) (2016).