Citation Nr: 18152693 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 17-26 445 DATE: November 27, 2018 REMANDED Entitlement to service connection for idiopathic essential tremors of the bilateral hands is remanded. Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to a disability rating in excess of 10 percent for a left hip strain with labral tear prior to September 14, 2017, and from November 1, 2017, to the present is remanded. REASONS FOR REMAND The Veteran served on active duty from June 23, 2008, through June 23, 2012, and from June 24, 2012, through September 5, 2014. The Veteran was honorably discharged from her first period of active service and discharged from her second period of active service under conditions other than honorable. Pursuant to a June 2015 VA administrative decision, the Veteran is only eligible for VA compensation benefits for disabilities which began during or are etiologically related to her first period of honorable service. 38 C.F.R. § 3.12 (2017). Her service from her second period of active duty, under other than honorable conditions, is a bar to VA benefits. Id. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Although the Board regrets the further delay, a remand is required for additional development and adjudicative action. 1. Entitlement to service connection for idiopathic essential tremors of the bilateral hands is remanded. In October 2014, the Veteran filed a claim for entitlement to service connection for tremors of the bilateral hands. She was afforded a September 2015 VA examination, which reflects a diagnosis of idiopathic essential tremors of the bilateral hands. However, no etiology opinion was provided. In her June 2016 Notice of Disagreement, the Veteran indicated that she did notice tremors while on active duty but that going to sick call was often discouraged or frowned up, especially as a woman. In an October 2016 statement from T. H., who worked with the Veteran from January 2010 to February 2012, T. H. reported witnessing the Veteran experience tremors in her bilateral hands, which resulted in difficulty performing basic tasks. T. H. stated that the Veteran hard a hard time passing out papers in meetings, holding a cup steady enough to drink out of, and that there were several times she dropped things. Given that the Veteran was afforded a VA examination, yet no opinion regarding the etiology of the Veteran’s diagnosed disorder was provided, the Board finds a remand is required in order to obtain a medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (providing the criteria for when an examination or opinion is required in a service connection case). 2. Entitlement to service connection for a psychiatric disorder is remanded. In October 2014, the Veteran filed a claim for entitlement to service connection for depression and anxiety. She was afforded an August 2015 VA mental health examination and the examiner diagnosed generalized anxiety disorder and unspecified depressive disorder with severe anxious distress and insomnia disorder. The examiner provided an opinion that these psychiatric diagnoses were at least as likely related to the Veteran’s military service and started when she was in the military service in Spain. The Board notes that the Veteran’s military service in Spain was during her second, other than honorable period of active duty service. Additionally, in the Veteran’s June 2016 Notice of Disagreement, she indicated that she felt her depression should have been considered as secondary to her service-connected left hip condition. Accordingly, on remand, new opinions regarding the etiology of the Veteran’s depression must be obtained, which consider only her honorable period of service, and which also address secondary service connection. 3. Entitlement to a disability rating in excess of 10 percent for a left hip strain with labral tear prior to September 14, 2017, and from November 1, 2017, to the present is remanded. The Veteran was most recently afforded a VA examination in connection with her claim for an increased rating in September 2017. Notably, the U.S. Court of Appeals for Veterans Claims (Court) recently determined that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The September 2017 VA examination report does not contain all the required range of motion testing. Accordingly, examination reports which include this required testing, or an explanation for why the required testing cannot be performed, must be completed on remand. Moreover, the Court has also recently held that examiners must offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran’s lay statements. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examination was inadequate because the examiner, although acknowledging that the veteran was not experiencing a flare-up at the time of that examination, failed to ascertain adequate information such as the frequency, duration, characteristics, severity, or functional loss during flare-ups in order to provide the requested opinion. In the case currently before the Board, while the September 2017 VA examiner acknowledged that the Veteran experienced flare-ups, the only information describing the flare-ups indicates that “she cannot move at all during flare-ups.” The September 2017 VA examiner reported the inability to provide an opinion without speculating regarding additional functional loss during flare-ups or after repetitive use, reasoning that the Veteran was not being evaluated during a flare-up or following repetitive use. The Board finds this cursory description of the Veteran’s flare-ups, along with the examiner’s inability to provide an opinion regarding functional ability during flare-ups or following repetitive use over time does not comply with the Court’s holding in Sharp. Accordingly, the examination report on remand must comply with the Court’s specific holding in that case. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Additionally, the Veteran has indicated that she receives medical treatment at the Camp Lejeune Naval Hospital as a dependent for her left hip disability, depression, and bilateral hand tremors. On remand, the AOJ must make appropriate attempts to obtain these records as well as any other medical records identified by the Veteran. See 38 C.F.R. § 3.159 (2017). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. 2. Contact the Veteran and request that she complete and return a signed authorization to allow VA to attempt to obtain any identified medical records on her behalf, to specifically include records from Camp Lejeune Naval Hospital. If the Veteran submits any medical authorization that is insufficient for further action, she should be notified, and any such notification should be properly documented in the claims file. Upon receipt of any valid medical authorization, VA must attempt to obtain any identified private records in accordance with VA regulation. See 38 C.F.R. § 3.159. 3. Following completion of steps 1-2, obtain a medical opinion from, if possible, the medical professional who performed the August 2015 VA central nervous system and neuromuscular diseases examination, to determine the etiology of the Veteran’s idiopathic tremors of the bilateral hands. If, and only if, the medical professional designated to provide the opinion finds that a new examination is warranted, it should be performed. The medical professional is informed that the Veteran is only eligible for VA compensation benefits for disabilities which began during or are etiologically related to her first period of active duty service, from June 23, 2008, through June 23, 2012. She is not eligible for benefits for any disabilities which began during or are etiologically related to her second period of active duty service, from June 24, 2012, through September 5, 2014. Following a review of the record, and with consideration of the Veteran’s statements, the medical professional is requested to provide the following information: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s idiopathic essential tremors of the bilateral hands began during or are etiologically related to her first period of active duty service, beginning June 23, 2008, through June 23, 2012. Why or why not? A complete rationale for this opinion must be provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. Specifically, the examiner must indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Following completion of steps 1-2, obtain addendum opinions from, if possible, the medical professional who performed the August 2015 VA mental health examination to determine the etiology of the Veteran’s psychiatric disorders (diagnosed as generalized anxiety disorder and unspecified depressive disorder with severe anxious distress and insomnia disorder). If, and only if, the medical professional designated to provide the opinion finds that a new examination is warranted, it should be performed. The medical professional is informed that the Veteran is only eligible for VA compensation benefits for disabilities which began during or are etiologically related to her first period of active duty service, from June 23, 2008, through June 23, 2012. She is not eligible for benefits for any disabilities which began during or are etiologically related to her second period of active duty service, from June 24, 2012, through September 5, 2014. Following a review of the record, and with consideration of the Veteran’s statements, please provide the following information: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s generalized anxiety disorder and unspecified depressive disorder with severe anxious distress and insomnia disorder began during or are etiologically related to her first period of active duty service, beginning June 23, 2008, through June 23, 2012. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s generalized anxiety disorder and unspecified depressive disorder with severe anxious distress and insomnia disorder were caused by her service-connected left hip disability. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s generalized anxiety disorder and unspecified depressive disorder with severe anxious distress and insomnia disorder were aggravated by her service-connected left hip disability. Why or why not? A complete rationale for all opinions rendered must be provided. If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. Specifically, the examiner must indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Following completion of steps 1-2, afford the Veteran the appropriate VA examination to determine the current severity of her left hip disability. All appropriate tests and studies should be performed. In addition to all required information requested on the appropriate Disability Benefits Questionnaire, the examiner is requested to provide the following information: (a) Obtain from the Veteran and record in the examination report a complete description of the frequency, severity, characteristics, duration, and functional loss experienced during flare-ups. (b) Obtain from the Veteran and record in the examination report a complete description of the frequency, severity, characteristics, duration, and functional loss experienced following repetitive use over time. (c) Conduct range of motion testing of the bilateral hips (expressed in degrees) on active motion, passive motion, and weight-bearing and non-weight bearing settings. If any of the range of motion testing is unable to be performed, a complete explanation for why this is so must be provided. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). If the examination does not take place during a flare-up or after repeated use over time, the examiner must attempt to offer an estimate derived from the information procured from relevant sources, including the Veteran’s lay statements, regarding the additional functional impairment during flare-ups or following repetitive use. Id. A complete rationale for ALL requested opinions is REQUIRED. If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. Specifically, the examiner must indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. The Veteran is informed that it is her responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that she was properly notified of the examination must be associated with the record. 7. The AOJ must review the examination reports and opinions to ensure they are adequate and that they comply with the Board’s specific remand instructions. If deficient in any manner, corrective action must be taken at once. (CONTINUED ON NEXT PAGE) 8. Then, the Veteran’s claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and her representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel