Citation Nr: 1802689 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 05-22 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a lower back disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, other than chronic undifferentiated schizophrenia, to include posttraumatic stress disorder (PTSD) and depression, and to include as secondary to service-connected chronic undifferentiated schizophrenia. 4. Entitlement to service connection for a bilateral shoulder disorder. 5. Entitlement to service connection for bilateral carpal tunnel syndrome. 6. Entitlement to service connection for a bilateral knee disorder. 7. Entitlement to service connection for muscular dystrophy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served in the United States Army Reserve from February 1982 to June 1990, with verified periods of active duty for training (ACDUTRA) from June 21, 1982 to August 20, 1982; from June 22, 1983 to August 10, 1983; on September 6, 1984, and from June 9, 1990 to June 23, 1990, as well as other periods of inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In July 2005, the Veteran testified at a hearing before a decision review officer (DRO). In an August 2016 statement, the Veteran withdrew his request for a central office hearing. In April 2009, May 2011, and November 2016 the Board remanded the appeal for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record on appeal reveals that the Veteran was in a number of motor vehicle accidents and he claims, in substance, that all of his claimed disabilities are due to a motor vehicle accident that took place during a period of qualifying service. In November 2016, the Board once again remanded the appeal to attempt was to verify the Veteran being in a motor vehicle accident during a qualifying period of service and to thereafter obtain needed medical opinions as to the origins or etiology of the Veteran's disabilities because the earlier January 2017 VA examinations were inadequate. The Board's remand language did not make obtaining the needed medical opinions (addendums to the January 2014 VA examination as to the neck, low back, and psychiatric disorders and original VA examinations as to his bilateral shoulder disorder, bilateral carpal tunnel syndrome, bilateral knee disorder, and muscular dystrophy) contingent on receiving verification of the Veteran being in the claimed motor vehicle accident. However, the post-remand record does not reveal that the AOJ obtain these needed medical opinions after DPRIS, in July 2017, notified the AOJ that it could not verify the Veteran having been in a motor vehicle accident in 1983 or 1984. Therefore, the Board finds that another remand to obtain these needed medical opinions is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Accordingly, the appeal is REMANDED to the AOJ for the following actions: 1. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Associate with the claims file all of the Veteran's post-March 2017 treatment records from the East Orange VA Medical Center. 3. Notify the Veteran and his representative that they can submit lay statements from the claimant and from other individuals who have first-hand knowledge of the observable in-service and any continued post-service problems caused by his neck, lower back, shoulder, carpal tunnel syndrome and knee disorders as well as acquired psychiatric disorder and muscular dystrophy. Provide them a reasonable time to submit this evidence. 4. Schedule the Veteran for a VA examination to determine the origins of his neck, lower back, bilateral shoulder disorder, bilateral carpal tunnel syndrome, bilateral knee disorder, and muscular dystrophy. 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, if needed, the examiner should provide answers to the following questions: a. As to his neck disorder and low back disorder including the currently diagnosed cervical spinal stenosis, cervical degenerative disc disease (DDD), and lumbar DDD as well as bilateral shoulder disorder, bilateral carpal tunnel syndrome, bilateral knee disorder, and muscular dystrophy, if any are present, is it at least as likely than not that it was caused or aggravated (i.e. permanently worsened) during any of his periods of ACDUTRA, to include the claimed motor vehicle accident in 1983 or 1984. b. As to his neck disorder, including cervical spinal stenosis, cervical DDD, and lumbar DDD as well as bilateral shoulder disorder, bilateral carpal tunnel syndrome, bilateral knee disorder, and muscular dystrophy, if any are present, is it at least as likely than not that it was caused by his service-connected schizophrenia disability. c. As to his neck disorder, including cervical spinal stenosis, cervical DDD, and lumbar DDD as well as bilateral shoulder disorder, bilateral carpal tunnel syndrome, bilateral knee disorder, and muscular dystrophy, if any are present, is it at least as likely than not that it was aggravated by his service-connected schizophrenia disability. In rendering the above opinions, the examiner should review and discuss the record, including the lay statements. The examiner's attention is drawn to the following: *February 1982 entrance report of medical examination that did not show any neck, back, shoulder, carpal tunnel, knee, or muscular dystrophy symptoms, complaints, or abnormalities. *November 1988 psychological evaluation noting that the Veteran was in a "devastating" car accident that injured his spine injured his spine, legs, knees, and arms one month prior. However, he was not on ACDUTRA or INACDUTRA one month prior. *October 1989 treatment record noting that the Veteran was treated for over 11 months for injuries stemming from an October 1988 civilian car accident. *October 1989 enlistment to the United States Army Reserve examination in which he only complained of a "trick" or locked knee. *June 1990 service treatment record noting that the Veteran had a history of cervical and lumbar radiculopathy since 1988 after a motor vehicle accident. *June 1990 report of medical examination noting that the Veteran's neck was painful and the Veteran complained of several painful symptoms related to the head and spine. *June 1990 chronological record of medical care showing that the Veteran complained of lower back pain that first manifest in 1983 and reoccurred in 1989. The medical professional assessed him with lower back pain and a mild lumbar strain with evidence of radiculopathy. *June 1990 report of medical examination and history in which the Veteran complained of recurrent back pain. *Several July 1990 treatment records in which the Veteran complained of injuries and psychiatric symptoms from a truck accident in 1984 or 1985. *October 1990 Medical Evaluation Board proceeding noting that the Veteran has a diagnosis of muscular dystrophy that was congenital and pre-existed his military service. *November 1990 treatment record showing that the Veteran complained of neck and back pain following a re-injury of an earlier injury from a motor vehicle accident. *December 1990 record indicating that the Veteran was placed on a Temporary Disability Retired List (TDRL) from duty because of physical disabilities. *March 1991 private treatment record showing that the Veteran was diagnosed with cervical and lumbar myofasciitis following an October 1988 motor vehicle accident. *The Veteran's statements regarding the date of his motor vehicle accident- June 1991, the Veteran describes the May 1984 truck accident that caused his neck and back problems as well as neurological and leg problems; February 2004, the Veteran asserted that the truck accident occurred in August 1984; February 2013, he asserted that the accident happened in August 1983 and June 1990. *June 1991 and February 2004 VA general examinations in which the Veteran complained of neck pain as well as back symptoms and asserted that they began 14 years prior; however, the examiner did not provide an etiology for these symptoms. *December 1992 report of medical examination for TDRL purposes that did not note any neck or back complaints or symptoms but noted that the Veteran's lower extremities were abnormal and indicated the presence of muscular dystrophy. *September 2002 VA radiology report in which the Veteran complained of posterior neck pain with radiation to both shoulders but the impression was a negative examination of the cervical spine. *March 2003 VA radiology report for both knees noting the Veteran's complaints of bilateral knee pain, but the impression showed no evidence of fracture or dislocation or significant degenerative changes in either knee. *February 2004 general VA examination showing the presence of mild bilateral carpal tunnel. *March 2004 VA physical medicine and rehabilitation clinic notes mentioning painful neck symptoms but not discussing their etiology or relationship to the Veteran's military service. *July 2005 DRO hearing in which the Veteran asserted that his back symptoms were caused by a motor vehicle accident and have been present since the accident as well as that his carpal tunnel, shoulder, knee, and muscular dystrophy symptoms stem from his military service. *January 2014 VA examination in which the examiner determined that the Veteran's cervical spine and lumbar disorders are not related to his military service because his cervical spinal stenosis, which is congenital, is due to his birth and normal aging process and because his lumbar DDD disorder is due to the normal aging process. *January 2016 written brief presentation asserting that the Veteran's service-connected schizophrenia contributed to the Veteran's musculoskeletal disorders, including his neck and low back disorders as well as his bilateral shoulder, bilateral carpal tunnel syndrome, bilateral knee, and muscular dystrophy disorders. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinions cannot be made without resorting to speculation. 5. Schedule the Veteran for a VA examination to determine the diagnosis and origins of psychiatric disorders other than chronic undifferentiated-type schizophrenia, including PTSD and/or depression. 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, if needed, the examiner should provide answers to the following questions: a. Does Veteran have any acquired psychiatric disorder other than chronic undifferentiated-type schizophrenia, including PTSD and/or depression. b. If the Veteran has any acquired psychiatric disorder other than chronic undifferentiated-type schizophrenia, the examiner should opine whether it is at least as likely as not that it was caused by his service-connected schizophrenia disability. c. If the Veteran has any acquired psychiatric disorder other than chronic undifferentiated-type schizophrenia, the examiner should opine whether it is at least as likely as not that it was aggravated (i.e. permanently worsened) by his service-connected schizophrenia disability. d. If the Veteran currently has any acquired psychiatric disorder other than schizophrenia, the examiner should opine as to whether it pre-existed his period of ACDUTRA from June 9, 1990, to June 23, 1990. IF SO, the examiner should also opine as to it is at least as likely as not that it was aggravated (i.e. permanently worsened) during that period of ACDUTRA beyond normal progression. e. If any current psychiatric disorder other than chronic undifferentiated-type schizophrenia did not pre-exist the period of ACDUTRA from June 9, 1990 to June 23, 1990, the examiner should opine as to whether it is at least as likely as not that it had its onset during that period of ACDUTRA, is related to his psychiatric symptoms during that period, is related to the Veteran's reported motor vehicle accident in 1983 or 1984, or is otherwise the result of a disease or injury in service. In rendering the above opinions, the examiner should review and discuss the record, including the lay statements. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following: *February 1982 entrance report of medical examination that did not show any psychiatric symptoms, complaints, or abnormalities. *November 1988 psychological evaluation noting that the Veteran was in a "devastating" car accident one month prior while he was not on ACDUTRA or INACDUTRA, in which the Veteran injured his musculoskeletal system and has had psychological symptoms stemming from that accident. However, he was not on ACDUTRA or INACDUTRA one month prior. *October 1989 treatment record noting that the Veteran was treated for over 11 months for injuries stemming from the October 1988 civilian car accident. *October 1989 enlistment to the Army Reserve examination showing no complaints of or treatment for psychiatric symptoms. *June 1990 report of medical examination history in which the Veteran complained of frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. *Several July 1990 treatment records in which the Veteran complained of injuries and psychiatric symptoms from a truck accident in 1984 or 1985. * The Veteran's inconsistent statements regarding the date of his motor vehicle accident- June 1991 statement in which the Veteran describes a May 1984 truck accident that caused neurological problems, including flashbacks and paranoia; February 2004 statement in which he asserted that the truck accident occurred in August 1984; and February 2013 statement in which he asserted that the accident happened in August 1983 and June 1990. *October 1991 statement in which the Veteran complained of posttraumatic depression. *November 1991 progress note showing a notation of PTSD and anxiety. *June 1995 VA progress note showing a notation of PTSD. *December 2003 statement in which the Veteran asserted that he had PTSD based on physical and emotional episodes from August 13, 1984, October 1, 1988, and February 6, 1989 motor vehicle accidents. *February 2004 VA examination in which the examiner noted that the Veteran was not reporting or showing evidence of symptoms consistent with a diagnosis of PTSD. *June 2005 VA PTSD screening that was negative. *August 2005, September 2005, November 2005, December 2005, February 2006, March 2006, April 2006, May 2006, June 2006, December 2006, October 2008, November 2008, and June 2010 VA treatment records in which the Veteran was diagnosed with PTSD. Additionally, he was diagnosed with PTSD by history in March 2009. *January 2009 VA mental health risk assessment screening note showing a diagnosis of depression, which was secondary to the Veteran's schizophrenia disability. *January 2014 VA examination in which the examiner determined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM V; however, the examiner failed to discuss the instances in the record where the Veteran was diagnosed with PTSD and depression. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinions cannot be made without resorting to speculation. 6. 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 the Veteran notice of all the evidence added to the record since the last SSOC. The Veteran 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). 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). _________________________________________________ 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) (2017).