Citation Nr: 18146591 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-05 682 DATE: October 31, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depression, as secondary to primary choroidal melanoma of the left eye, status post removal of the left eye, is remanded. Entitlement to an initial compensable disability rating for lumbar degenerative disc disease, claimed as degenerative joint disease, prior to December 31, 2013, and in excess of 10 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1980 to January 2003. The Veteran testified at a videoconference hearing in December 2016 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depression, as secondary to primary choroidal melanoma of the left eye, status post removal of the left eye, is remanded. The August 2017 VA examiner diagnosed the Veteran with severe alcohol and cannabis use disorders and opined that his psychiatric conditions were less likely than not related to active duty service because the Veteran had abused substances since he was fourteen years old. However, the Board notes that the Veteran has been diagnosed with PTSD and major depression. See e.g., April 2014 VA Examination. Therefore, an etiology opinion addressing these conditions must be obtained unless the examiner concludes that these diagnoses are improper and can thoroughly explain why, or whether a disorder may have existed but possibly resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the Board finds that a new VA examination and etiology opinion must be obtained in order to determine whether any acquired psychiatric disability is etiologically related to service. 2. Entitlement to an initial compensable disability rating for lumbar degenerative disc disease, claimed as degenerative joint disease, prior to December 31, 2013, and in excess of 10 percent thereafter, is remanded. In June 2017, the Board denied an initial compensable disability rating for lumbar degenerative disc disease prior to December 31, 2013, and in excess of 10 percent thereafter. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the contesting parties, the Court vacated the Board’s decision and remanded the claim back to the Board for further development and readjudication in compliance with the specified directives. The Board finds that a new VA examination to determine the current severity of the Veteran’s degenerative disc disease of the lumbar spine is warranted. As indicated in the JMR, the November 2013 and October 2015 VA examinations did not include the range of motion testing required under 38 C.F.R. § 4.59, as discussed in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Correia requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Given that the Veteran was not afforded the proper testing, the Board finds that a new VA examination is necessary. The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims as well as any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. Afford the Veteran a VA examination to determine the precise nature of his acquired psychiatric disorder, including any disorders which may have resolved during the pendency of this appeal (ie., since July 31, 2013). The Veteran’s claims file must be made available to the examiner in conjunction with the examination. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be used. The examiner should confirm whether the Veteran currently has a diagnosed psychiatric disorder pursuant to DSM-5 (given the date that the appeal was certified to the Board). The examiner should then provide an opinion as to the following: (a.) If PTSD is diagnosed, or has been diagnosed since July 31, 2013, then is at least as likely as not (a 50 percent or greater probability) that the Veteran’s PTSD was caused by his service-connected primary choroidal melanoma of the left eye? (b.) If the Veteran’s primary choroidal melanoma of the left eye did not cause PTSD, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s PTSD was aggravated (permanently worsened beyond its natural progression) by primary choroidal melanoma of the left eye? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of PTSD by the service-connected disability. (c.) For any psychiatric diagnosis other than PTSD that has been diagnosed since July 31, 2013, even if resolved, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s psychiatric diagnosis was caused by his service-connected primary choroidal melanoma of the left eye? (d.) If the Veteran’s primary choroidal melanoma of the left eye did not cause any psychiatric diagnosis other than PTSD, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s psychiatric disability was aggravated (permanently worsened beyond its natural progression) by primary choroidal melanoma of the left eye? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of a psychiatric disability by the service-connected disability. If no psychiatric disorders are diagnosed, this must be explained in the context of earlier records showing treatment for PTSD and major depression. See e.g., April 2014 VA Examination. A complete rationale for any opinion provided is requested. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. 3. Afford the Veteran a VA spine examination to assess the severity of his degenerative disc disease of the lumbar spine. A copy of this remand and all relevant medical records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated studies. All testing indicated by the current Disability Benefits Questionnaire format must be addressed. The examiner should report all signs and symptoms necessary for rating the Veteran’s spine disability under the rating criteria. The examiner should provide the range of motion in degrees of the spine. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, where possible. If the examiner is unable to conduct the required testing, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel