Citation Nr: 1806261 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 04-35 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right arm disability, to include entitlement to benefits for a right arm disability pursuant to 38 U.S.C. § 1151. 2. Entitlement to service connection for a psychiatric disability, to include depressive disorder. 3. Entitlement to an initial rating in excess of 20 percent, prior to January 8, 2009, and in excess of 50 percent as of January 8, 2009, for left shoulder paresthesia associated with cervical radiculopathy. 4. Entitlement to an initial rating in excess of 20 percent, prior to December 9, 2002, and a rating in excess of 30 percent, as of March 1, 2003, for a cervical spine disability. 5. Entitlement to an initial rating in excess of 30 percent prior to December 1, 2015, and in excess of 0 percent as of December 1, 2015, for a headache disability, to include the propriety of a rating reduction from 30 percent to 0 percent, effective December 1, 2015. 6. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or on being housebound. 7. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability (TDIU) prior to July 6, 2005. ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from July 1968 to April 1970, with additional service in the Army National Guard, including a period of active duty for training from May 12, 1990, to May 26, 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from several rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). REMAND The Board finds that additional development is required for the claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. With regard to the claim for service connection for a right arm disability, the Board finds that there has not been substantial completion of the development requested in the Board's November 2016 remand. The Veteran was provided with a VA examination to determine the nature and etiology of the claimed right arm disability in December 2016. However, a close review of the opinion shows that the December 2016 VA examination to be incomplete. Specifically, the Board notes that with regard to the right arm disability, claimed as secondary to service-connected disabilities, to include a neck disability, the examiner noted that there was no medical basis to find that a neck disability would cause an arm or shoulder disability. The examiner found that there was also no evidence that the Veteran's neck disability aggravated a right arm disability. However, no further inquiry or opinion was made with regard to any potential etiological relationship with the Veteran's various other service-connected disabilities. The Board notes that in a November 2016 remand, the Board explicitly requested that upon remand, that the VA examiner must address any etiological relationship, causal or aggravation, between the Veteran's claim right arm disability, and service-connected disabilities, to include his neck disability. While the report comprehensively noted no relationship between the neck and his right arm, the examiner did not opine upon any of the other service-connected disabilities, combined or singularly. Furthermore, the November 2016 remand directives also explicitly asked for the examiner to retroactively speak to the functional loss, or employability of the Veteran due to neck and left shoulder disabilities prior to July 6, 2005. That opinion was not obtained. Therefore, the Board finds remand is necessary. A remand by the Board confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). As the November 2016 VA examination did not supply all of the requested information, further development is necessary for VA to fulfill the duty to the Veteran. The Board also finds that the February 2017 VA psychiatric examination to assess the nature and etiology of the claimed depressive disorder to be incomplete. Specifically, during the examination, the Veteran was not assessed with any diagnosis of depressive disorder, or any other psychiatric disability other than tobacco use disorder. The examiner noted some sleeping disturbance, with no indication of a diagnosis or manifestations of a depressive disorder. The examiner noted that a SIM test conducted during the examination noted severe malingering and exaggeration by the Veteran of various psychiatric symptoms and manifestations. Ultimately, no etiological analysis or opinion was noted by the VA examiner in the report as no disorder was diagnosed. The Board finds that examination to be incomplete, as did not address the question of relationship to service of any mental disorder diagnosed during the pendency of the appeal. Therefore, further development is required. Even considering the examiner inability to determine an adequate diagnosis for a depressive disorder, the medical evidence of record demonstrates a history of depression, to include a February 2012 VA examination which explicitly found an Axis I diagnosis of depressive disorder. As the February 2017 examination report is silent on assessing the etiology of the previously diagnosed depression, the Board finds that further development is required. Barr v. Nicholson, 21 Vet. App. 303 (2007). When medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Consequently, the claim must be remanded for another VA examination to fulfill the duty to assist the Veteran. With regard to the claims for increased ratings for left shoulder, neck, and headache disabilities, the Board finds that the Veteran's last examinations of the nature and severity of those disabilities are too remote to adequately indicate the Veteran's current level of disability. The Board notes that the Veteran was last provided a VA examination to assess the severity of a neck disability in October 2011, more than six years ago. The Veteran was last provided examinations for shoulder and headache disabilities in December 2015, over two years ago. Generally, the mere passage of time is not a sufficient basis for a new examination, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281 (1993). Here, the Board finds that not only is the last examinations temporally remote, but the examinations appear to no longer indicate the Veteran's current levels of disability for disabilities of the neck, left shoulder, and headaches. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran's claim for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the Board notes that updated private and VA medica records are also needed on remand. The medical evidence of record currently only includes medical records up to 2015. The Board finds that the issue of entitlement to SMC, and entitlement to TDIU prior to July 6, 2005, are inextricably intertwined with the issues of entitlement to higher ratings for a cervical spine disability, left shoulder paresthesia, and tension headaches. Two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a decision on the issue of entitlement to SMC and a TDIU must be deferred until after the outcome of the claims for increased ratings. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Complete ongoing development efforts with regard to outstanding private treatment records. The Veteran should be notified of any failed efforts to obtain them, and allowed the opportunity to provide any missing records. All records received must be associated with the file. 3. Then, schedule the Veteran for a VA examination to assess the nature and severity of the service-connected neck disability and left shoulder disabilities, and to provide an opinio as to whether any right arm disability is related to service or any service-connected disability. The examiner must review the claims file and should note that review in the report. The examiner must give range of motion findings for active and passive motion and for weight-bearing and nonweight-bearing. The examiner should opine whether there is additional loss of range of motion due to incoordination, fatigability, painful motion, excess motion, weakened motion, or on flare up. The examiner should also describe any neurologic residuals, the level of impairment caused by any neurologic residuals, and the nerves affected. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that currently diagnosed right acromioclavicular joint osteoarthritis, or any other right arm disability, to include any right arm neurologic disability, is as least as likely as not proximately due to a service-connected disability, to specifically include a cervical spine disability? (b) Is it at least as likely as not (50 percent or greater probability) that currently diagnosed right acromioclavicular joint osteoarthritis, or any other right arm disability, to include any right arm neurologic disability, has been aggravated (permanently worsened beyond it natural progression) by a service-connected disability, to specifically include a cervical spine disability? (c) Reconcile the opinions with the July 2005 VA examination report which found positively a left shoulder disability was secondary to a cervical spine disability. (d) Retrospectively describe the functional impairment caused by the service-connected cervical spine and left shoulder disabilities for the period prior to July 6, 2005. In particular, the examiner should elaborate on how symptoms related to such disabilities affected his capacity to do both physical and sedentary work prior to the aforementioned date. The examiner should opine whether it was at least as likely as not (50 percent probability or greater) that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities prior to July 6, 2005. If so, the examiner should opine as to the date that level of impairment began. (e) Opine whether the Veteran needs that aid and attendance of another person due to service-connected disabilities. (f) Opine whether the Veteran is confined to his home or premises due to service-connected disabilities. 4. Then, schedule the Veteran for a VA examination to determine the severity of headaches. The examiner must review the claims file and should note that review in the report. The examiner is also asked to report any functional loss with regard to employment or everyday activity, both prospectively, and retroactively, to the effective date of the disability. The examiner should opine as to whether characteristic prostrating attacks are shown due to headaches, and if so, the frequency and duration of any attacks. 5. Then, schedule the Veteran for VA examination to determine the nature and etiology of any mental disorder. The examiner must review the claims file and should note that review in the report. The examiner must explain the reasons for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by the Veteran. The examiner should provide the following: (1) Is any mental disorder, to include currently diagnosed depressive disorder, at least as likely as not (50 percent or greater probability) related to service or any event, injury, or disease during service? (b) Is any mental disorder, to include currently diagnosed depressive disorder, at least as likely as not (50 percent or greater probability) proximately due to one or more service-connected disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that any mental disorder, to include diagnosed depressive disorder, has been aggravated (permanently worsened beyond the natural progress of the disorder) by one or more service-connected disabilities? (d) The examiner must address the previous psychiatric diagnoses of depressive disorder, to include opining as to any etiological relationship between that diagnosis and active service, or any service-connected disabilities. The examiner must also reconcile any current diagnosis, opinion, or rationale with any previous opinions of record. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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) (2017).