Citation Nr: 1754589 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-04 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for an anxiety disorder not otherwise specified, also claimed as posttraumatic stress disorder (PTSD) and manic depression (hereinafter, "anxiety disorder"). 2. Entitlement to service connection for a disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2014 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The Veteran subsequently withdrew his hearing request in March 2014. 38 C.F.R. § 20.704. In July 2015 the Board remanded the issues on appeal. However, further development remains necessary and the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was last afforded a VA examination for a mental disorder in September 2015, which only showed symptoms of anxiety. At that time, the examiner opined that the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Subsequently, in a statement in March 2016, the Veteran indicated that he was feeling worse lately and was experiencing depression and loss of memory. The United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Further, the September 2015 VA examiner used the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) in evaluating the Veteran's service-connected anxiety disorder. However, effective March 19, 2015, VA adopted an interim rule as a final rule which among other changes replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The rulemaking amended provisions of the Code of Federal Regulations, to include 38 C.F.R. 4.125. It was specifically noted that the Secretary did not intend for the provisions to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015). In the instant case, the Veteran's claim was certified to the Board in February 2014. Thus, the criteria that must be used are the DSM-IV, not the DSM-5. In light of these facts, a new VA examination is necessary to evaluate properly the current severity of the Veteran's service-connected anxiety disorder. As for the claim of entitlement to service connection for a nerve condition, the Board remanded the issue in part for a July 2007 VA nerve study to be associated with the file and for the Veteran to be afforded a VA examination to determine the nature and etiology of his nerve condition. Subsequently, the July 2007 VA Electromyograph (EMG)/Nerve Conduction Velocity (NCV) consult was obtained, which provided an impression of limited abnormal EMG findings suggesting a bilateral nerve root lesion at the mid and low neck level and mild left median sensory neuropathy probably at the wrist. The Veteran was afforded a VA examination for peripheral nerves in January 2016. However, additional development is necessary for the following reasons. First, the clinical findings from the January 2016 VA examination showed that the Veteran did not have symptoms attributable to a peripheral nerve condition. However, the examiner also appeared to indicate that the Veteran had paresthesias and/or dysesthesias. Thus, these findings are unclear as well as inconsistent with the July 2007 EMG findings discussed above. Second, the examiner did not discuss whether the Veteran has a nerve condition, other than peripheral neuropathy, that was manifested by the bilateral nerve lesion in the neck on the July 2007 EMG. Third, the examiner did not address the Veteran's contentions that he had nerve damage during service. See, e.g. February 2013 notice of disagreement whereby the Veteran stated that during service in Vietnam he was thrown off a truck that hit a mine and that he believed that he incurred nerve damage as a result of this in-service incident. His personnel records indeed show that he served in Vietnam from September 1966 to September 1967 with units to include a combat engineer battalion. The Court has held that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In light of the above, a remand is required to schedule the Veteran for a new VA neurological examination that undertakes all appropriate studies, to include an EMG to determine whether the Veteran has a nerve condition related to his service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA psychiatric examination to determine the current severity of his service-connected anxiety disorder. The examiner should identify all current manifestations of this service-connected disorder. The examiner should also opine on the current degree of occupational and social functioning associated with this disorder. The examiner must apply the DSM-IV criteria in evaluating the anxiety disorder and provide a Global Assessment of Functioning score with an explanation of the significance of the score assigned. Full rationale must be provided for all stated medical opinions. If the examiner is not able to provide an opinion, he or she should explain why. 2. Also, schedule the Veteran for a VA neurological examination to determine the nature and etiology of his nerve condition. The claims file must be made available to the examiner for review of the case. EMG studies should be conducted as well as any other tests and studies deemed necessary. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. After reviewing the claims folder and examining the Veteran the examiner must: a.) Identify/diagnose all current nerve disorders. In doing so, the examiner must reconcile the inconsistencies between the July 2007 VA EMG which showed a mild left median sensory neuropathy with the clinical findings on the January 2016 VA examination that showed that the Veteran did not have symptoms attributable to a peripheral nerve condition. The examiner also must address whether the Veteran has a nerve condition that was manifested by the bilateral nerve root lesion at the mid and low neck level shown on the July 2007 EMG. b.) For each identified neurological disorder the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was incurred during service to include his exposure to Agent Orange therein as well as other chemicals that the Veteran claims he was exposed to in Vietnam. See Veteran's November 2011 statement asserting that his nerves were shot due to his exposure in Vietnam to Agent Orange and other chemicals to include nerve gas. The examiner also is asked to address the Veteran's contentions of having nerve damage in service. See, e.g. February 2013 notice of disagreement whereby the Veteran stated that during service in Vietnam he incurred nerve damage when he was thrown off a truck that hit a mine. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. Also, a clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 3. The AOJ must review the examinations and opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 4. When the development requested has been completed, the AOJ must readjudicate the issues of entitlement to an initial rating in excess of 30 percent for an anxiety disorder and entitlement to service connection for a nerve disorder. If any benefit sought is not fully granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case. The Veteran should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, for example, may impact the determination made. His failure to report for a VA medical examination may have the same impact. 38 C.F.R. § 3.655 (2017). He is also advised that he has the right to submit additional evidence and argument concerning this matter. 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 the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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) (2017).