Citation Nr: 1803098 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 04-29 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease (DDD) of the lumbar spine. 3. Entitlement to a rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity. 4. Entitlement to a rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity. 5. Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease (DJD) of the right knee. 6. Entitlement to a rating in excess of 10 percent for service-connected DJD of the left knee. REPRESENTATION Veteran represented by: Virginia Girard-Brady, Attorney-at-law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated April 2006 and July 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In Board decisions dated January 2009 and June 2014, the acquired psychiatric disorder claim (identified as a claim to reopen) was remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) most recently continued the previous denial in an October 2017 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. As indicated above, the Board notes that the issue of service connection for an acquired psychiatric disorder to include PTSD has been developed (and adjudicated) as a claim for whether new and material evidence has been received to reopen the claim. Service connection for PTSD was initially denied in an August 1999 Board decision, which the Veteran did not appeal. As such, he would typically be required to submit new and material evidence to reopen his claim for service connection. See 38 C.F.R. § 3.156(a) (2017). However, since the August 1999 Board decision, additional service personnel records have been received. These records included findings that may be relevant to the Veteran's claim. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c) (2017). This regulation contemplates official service department records which presumably have been misplaced and have now been located and forwarded to VA. In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claim must be reconsidered. In other words, the submission of new and material is not required in this case for VA to consider the claim on the merits. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND For the reasons set forth below, the Board finds that the claims on appeal must be remanded for further evidentiary development. In the June 2014 decision, the Board remanded the acquired psychiatric disorder claim for the AOJ to obtain pertinent Morning Reports from April 5, 1971, to June 4, 1971, for D Company, 2nd Battalion, Advance Infantry Training Brigade, USATCI, Fort Polk, Louisiana. The AOJ was also to request records, from the appropriate custodian including the Department of the Army, and the Command for the Advance Infantry Training Brigade, USATCI, Fort Polk, Louisiana, for an investigated report pertaining to the death of a trainee of D Company, 2nd Battalion, Advance Infantry Training Brigade, USATCI, Fort Polk, Louisiana during the period from April 5, 1971, to June 4, 1971. The Board recognizes that, pursuant to the June 2014 Remand instructions, the AOJ submitted several records requests to the Department of the Army, the Command for the Advance Infantry Training Brigade, the Casualty Assistance Center, the Army Garrison, and the National Personnel Records Center. Negative responses were received from the Department of the Army, the Casualty Assistance Center, the Army Garrison, and the Command for the Advance Infantry Training Brigade. In addition, the NPRC submitted all available potentially pertinent records; however, no records verifying the claimed trainee death were located. Accordingly, this claimed in-service stressor has not been verified. Significantly, the Board notes that the Veteran has previously alleged other in-service stressors for his claimed acquired psychiatric disorder, including the constant stress from potential deployment to the Republic of Vietnam, seeing the bodies of service members returning from Vietnam, and learning that his friends had died while serving in Vietnam. See, e.g., the Veteran's claim dated May 1996. The Board additionally observes that recently added service personnel records demonstrate that the Veteran received three non-judicial punishments under Article 15, Uniform Code of Military Justice (UCMJ) during his active duty service. In addition, a review of the Veteran's treatment records indicates that he suffers from PTSD symptoms including depression and anxiety. See, e.g., the VA treatment records dated February 2008 and August 2006. Accordingly, the Board finds that the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder must be remanded in order for the Veteran to be afforded a VA examination to determine whether he suffers from an acquired psychiatric disorder due to his claimed military stressors. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2017) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). With respect to the claim of entitlement to higher initial ratings for service-connected DDD of the lumbar spine, radiculopathy of the right and left lower extremities, and DJD of the right and left knees, the Veteran was last afforded a VA examination of his disabilities in January 2011. The Veteran has since contended that his symptoms are more disabling than were documented by the January 2011 VA examiner. In particular, the Veteran, through his attorney, recently submitted evidence suggesting that he has lost the use of his left side as a result of his lumbar spine, radiculopathy, and knee symptomatology. See, e.g., written argument of the Veteran's attorney dated December 2017. Moreover, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court recently held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. In light of the foregoing and the fact that the January 2011 examination reports do not fully satisfy the requirements of Correia, Sharp and 38 C.F.R. § 4.59, the Veteran should be afforded new VA examinations before a decision can be rendered on his increased rating claims. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the etiology of his claimed psychiatric disorder to include PTSD. All indicated tests and studies should be conducted. The contents of the electronic claims file must be made available to the examiner for review in connection with the examination. (a) Document the Veteran's current diagnoses; in doing so, indicate whether the Veteran is currently diagnosed with PTSD. (b). If PTSD is diagnosed under the DSM-V criteria, provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's currently diagnosed PTSD is due to a claimed in-service stressor. (c). Provide an opinion as to whether it is at least as likely as not that any current psychiatric disorder was incurred in the Veteran's active duty service. In answering these questions, the examiner should address the Veteran's assertions of continuity of symptomatology dating from his military service. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. The Veteran should be afforded a VA examination in order to determine the extent of his service-connected DDD of the lumbar spine and radiculopathy of the right and left lower extremities. Access to the Veteran's electronic VA claims file must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). In rendering his/her findings, the examiner should identify any evidence of neurological manifestations due to the service-connected DDD of the lumbar spine to include the diagnosed neurological pathology of the right and left lower extremities. The examiner must identify the specific nerves involved or seemingly involved and describe the degree of impairment as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. In addition, the examiner should address the impact of the lumbar spine and radiculopathy disabilities upon the Veteran's industrial activities, including his ability to obtain and maintain substantially gainful employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. The Veteran should also be afforded a VA examination in order to determine the extent of his service-connected right and left knee disabilities. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. In addition, the examiner should address the impact of the right and left knee disabilities upon the Veteran's industrial activities including his ability to obtain and maintain substantially gainful employment. 5. Thereafter, readjudicate the claims on appeal. If a benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).