Citation Nr: 18151079 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 10-42 018 DATE: November 16, 2018 REMANDED Entitlement to a disability rating in excess of 40 percent for lumbar myositis is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy associated with lumbar myositis is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and generalized anxiety disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Army from September 1973 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2009, April 2009, April 2011, and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The February 2009 rating decision denied an increased rating for lumbar myositis. The April 2009 rating decision denied reopening a claim for service connection for anxiety disorder. The April 2011 rating decision denied service connection for depressive disorder. The September 2012 rating decision denied service connection for bilateral lower extremity radiculopathy. The Veteran previously requested a hearing before a Veterans Law Judge but later withdrew his request in correspondence received in January 2017. The Board notes that the Veteran initially submitted separate claims for depression and anxiety. The Board has recharacterized the issues on appeal as one claim for service connection for an acquired psychiatric disorder, to include major depressive disorder and anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). These matters were most recently before the Board in February 2017. The Board reopened the Veteran’s claim of entitlement to service connection for anxiety disorder, then remanded that claim and the others currently on appeal for further development. The matters have since been returned to the Board for appellate review. Regrettably, for reasons discussed below, remand for additional development is necessary before the Board may proceed with adjudicating the Veteran’s claims. 1. Entitlement to a disability rating in excess of 40 percent for lumbar myositis In accordance with the Board’s February 2017 remand instructions, the Veteran was afforded a VA examination in June 2017 in connection with his claims for an increased rating for lumbar myositis and service connection for bilateral lower extremity radiculopathy. Unfortunately, the finds the examination inadequate for adjudicating either claim. In evaluating the current severity of the Veteran’s service-connected lumbar myositis, the examiner noted that the Veteran reported flare-ups involving “severe pain with repetitive bending at waist.” The examiner also noted the Veteran’s reports of functional impairment associated with his lumbar myositis, such as difficulty lacing his shoes. However, the examination was not conducted during a flare-up, and the examiner determined that she could not say without mere speculation whether the pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups: “to classify the functional limitation in the absence of the flare up as significant, mild, moderate or severe would be mere speculation.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court of Appeals for Veterans Claims (Court) recently held that VA examination reports must address functional loss during flare-ups regardless of whether the veteran was undergoing a flare-up at the time of examination. Here, there is no indication the examiner asked the Veteran to further describe functional loss during flare-ups such that the examiner may estimate additional functional loss, as requested by the Board in its February 2017 remand instructions. Moreover, the examiner also failed to test range of motion in passive motion and non-weightbearing, as requested in the remand instructions. Therefore, remand is necessary to afford the Veteran an adequate VA examination to determine the current severity of his lumbar myositis. 2. Entitlement to service connection for bilateral lower extremity radiculopathy associated with lumbar myositis The Board also finds the June 2017 VA examination to be inadequate for the purpose of adjudicating the Veteran’s claim of entitlement to service connection for bilateral lower extremity radiculopathy. The examiner diagnosed bilateral lower extremity radiculopathy but determined that “the signs and symptoms can’t be separated from the Veteran’s service connected lumbar myositis and non service connected lumbar spondylosis with bilateral lumbar radiculopathy.” The examiner further explained that “[i]t is impossible to separate the pain, and specifically the range of motion that each condition creates in the lumbar area, without resulting [sic] to mere speculation.” The Board finds this opinion is inadequate because it is confusing and does not directly address the question of whether the Veteran’s bilateral lower extremity radiculopathy was caused or aggravated by his service-connected lumbar myositis. Therefore, remand for another VA opinion is necessary. In finding that another VA opinion is necessary to adjudicate the Veteran’s claim, the Board acknowledges the Court’s decision in Mariano v. Principi, 17 Vet. App. 305 (2003). In this regard, the Board notes that although Mariano states that it “would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case,” the Court has held that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim. See Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano, 17 Vet App. at 312). In this case, the Board acknowledges that the Veteran provided a private positive nexus opinion concerning the relationship between his radiculopathy and lumbar myositis in September 2018. The opinion, written in August 2018, is signed by S.D.P., “Doctor in Medicine, CMC, MSAS – Venezuela.” S.D.P. provided a U.S. residential address and phone number but no business contact information or more detailed information concerning her education, experience, and credentials. This lack of information calls into question S.D.P.’s credibility as a medical expert, as it is not clear whether she is actually licensed to practice medicine or otherwise possesses the level of education, training, and experience necessary to render an opinion on the Veteran’s radiculopathy. See Sklar v. Brown, 5 Vet. App. 140, 146 (1993) (professional credentials and experience of opinion providers are properly considered in assigning probative value). Therefore, the Board finds that this opinion provides an insufficient basis for a grant of service connection at this time. 3. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and generalized anxiety disorder In accordance with the Board’s February 2017 remand instructions, the Veteran was afforded a VA examination in June 2017 concerning his claimed psychiatric disabilities. The examiner diagnosed the Veteran with major depression and noted a “chronic medical condition” as relevant to the understanding or management of the Veteran’s diagnosed depression. The examiner did not specify which condition, though the record suggests the Veteran has a number of chronic conditions, including service-connected lumbar myositis and non-service connected coronary artery disease and HIV, among other conditions. The examiner determined the Veteran’s depressive disorder was not related to military service, noting that the paranoid schizophrenia and histrionic personality trait with which the Veteran was diagnosed six years after discharge “are not related to any physical diagnosis;” that “those ‘mental’ condition are secondary to ‘brain chemical dysfuction,’ [sic] and not related to any physical complaint nor condition, like Veteran[’s] ‘back pain.’” The examiner also concluded that the Veteran’s depressive disorder was not caused or aggravated by his service-connected lumbar myositis: “[t]he etiology, anatomical area and time frame are different, no nexus was found.” The examiner seemed to suggest that a chronic condition like lumbar myositis could aggravate a psychiatric condition like anxiety or depression, but such was not the case here because the Veteran’s record showed “no gross mental pharmacologic change” or increase in “mental medication” relative to his chronic back pain. The examiner later wrote that the Veteran’s depressive disorder is not related to his lumbar myositis, explaining that “both condition[s] are from different etiology and anitomica [sic] area . . . [n]o relation are found.” Overall, the Board finds the examiner’s opinions to be largely confusing and difficult to read. Moreover, the opinions did not adequately address the questions posed by the Board in its February 2017 remand instructions. The examiner’s opinion concerning service connection on a direct basis discussed the relationship between the Veteran’s previously diagnosed schizophrenia and histrionic personality trait and his current back pain—an issue irrelevant to the Veteran’s claim. The examiner’s opinion concerning service connection as secondary to the Veteran’s lumbar myositis suggested the conditions were unrelated because they involve different anatomy, and because records showed no mental changes or increase in medication. The examiner did not cite to any specific evidence, nor did he address the May 2009 private medical evidence suggesting a link between the Veteran’s psychiatric conditions and lumbar myositis. Further, since the June 2017 examination, additional medical evidence concerning the Veteran’s psychiatric condition has been associated with the claims file, including the report of a private psychiatrist and additional buddy statements. Therefore, remand is necessary to afford the Veteran an adequate VA examination. In reaching this decision, the Board acknowledges the August 2018 opinion provided by private psychiatrist C.L.R., who determined that the Veteran’s back pain contributed to the development of his major depressive disorder. Dr. C.L.R. noted that the Veteran sought treatment for depression at around the same time medical treatment records showed increased pain ratings; she did not otherwise explain whether these two facts were actually related. Instead, Dr. C.L.R. simply cited to medical literature indicating that chronic pain and depression frequently co-occur. Because Dr. C.L.R. did not provide an adequate rationale to support her conclusion, the Board finds that her opinion provides an insufficient basis for a grant of service connection at this time. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Board finds that since adjudication of the Veteran’s increased rating and service connection claims will likely impact the Veteran’s total disability rating, the issue of TDIU is inextricably intertwined with the claims on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the matters are REMANDED for the following actions: 1. Obtain any additional VA outpatient treatment records and associate them with the claims folder. All attempts to obtain records should be documented. 2. Then, translate any untranslated buddy statements provided by the Veteran’s attorney in September 2018. 3. Thereafter, schedule the Veteran for another VA psychiatric examination—if possible, with an examiner other than the one who provided the June 2017 VA examination. The examiner is requested to review the records and should specifically provide an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current psychiatric condition is related to service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current psychiatric condition is related to/caused by the service-connected back disability. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current psychiatric condition is aggravated (worsened beyond the normal progression) by the service-connected back disability. The examiner is specifically asked to address the May 2009 and August 2018 private opinions, as well as buddy statements included with the Veteran’s representative’s September 2018 correspondence. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Schedule the Veteran for a VA orthopedic examination to determine the current severity of his service-connected back disability and its relationship to the Veteran’s diagnosed bilateral lower extremity radiculopathy. The entire claims file, including any newly obtained treatment records, must be reviewed by the examiner and all necessary tests should be conducted. Specifically, the examiner is requested to test the Veteran’s low back range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner is also requested to note any flare-ups, to include describing any additional degrees of limited motion during these flare-ups, or due to such factors as pain, pain on motion, weakness, incoordination, or fatigability. If the examiner is unable to conduct the required testing or concludes that the required testing is unnecessary, he or she should explain why that is so. The examiner should also opine as to the impact of the Veteran’s orthopedic disabilities on his daily activities and identify any motion or activities that would be restricted and the degree to which that would occur. Regarding to the Veteran’s radiculopathy, the examiner is asked to answer the following questions: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral lower extremity radiculopathy is related to/caused by his service-connected lumbar myositis. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral lower extremity radiculopathy is aggravated (worsened beyond the normal progression) by his service-connected lumbar myositis. The examiner must specifically address the August 2018 private medical opinion. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. (Continued on the next page)   5. Then, readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel