Citation Nr: 18152739 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 11-12 425 DATE: November 27, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an effective date earlier than April 12, 2016 for the grant of service connection for radiculopathy of the right lower extremity is remanded. Entitlement to an effective date earlier than June 30, 2006 for the assignment of a combined disability rating of 80 percent is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1970 to August 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a personal hearing before the Board in October 2015, and a transcript of the hearing is of record. The issue of entitlement to service connection for an acquired psychiatric disorder was previously before the Board, and, in March 2016, the Board remanded the matter for further development. After further development, the Board decided the issue in September 2017 by denying the claim for service connection. The United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision in April 2018, and remanded the matter back to the Board for further consideration. The Board notes that the Veteran submitted a notice of disagreement (NOD) in March 2018 appealing the current disability ratings for his radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, injury to Muscle Group III, and back condition as well as the denial of entitlement to service connection for a left ankle condition and sleep apnea. The Veterans Appeals Control and Locator System (VACOLS) indicates that the RO is aware of and in the process of developing these claims. Therefore, the Board shall not take special jurisdiction over these issues for the purposes of ordering a statement of the case (SOC) to be issued at this time. Manlincon v. West, 12 Vet. App. 238 (1999). 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. The Board previously denied the Veteran’s claim for service connection, and, in April 2018, the Court vacated the Board’s decision and remanded the matter for further consideration. The Court found that the Board improperly relied on a December 2016 VA examination and addendum thereto, because the opinions contained within were not supported by an adequate rationale. In addition to the Court’s general dissatisfaction with the December 2016 VA examination and addendum thereto, the Court specifically took issue with the fact that the examiner opined that there could be many possible causes of the Veteran’s acquired psychiatric disorder without further describing what those possible causes could be. Finally, separate and apart from the December 2016 VA examination and addendum thereto, the Court found that there was an inadequate medical basis for the Board’s conclusion that the Veteran did not manifest a diagnosis of posttraumatic stress disorder (PTSD) during the period on appeal. In order to ensure compliance with the Court’s remand instructions, this matter must be remanded in order to provide the Veteran with a VA examination addressing the Court’s concerns. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to an effective date earlier than April 12, 2016 for the grant of service connection for radiculopathy of the right lower extremity is remanded. As previously noted, the Veteran submitted a NOD in March 2018 challenging the currently assigned effective date for the assignment of service connection for radiculopathy of the right lower extremity; the current disability ratings for radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, injury to Muscle Group III, and a back condition; and the denial of entitlement to service connection for a left ankle condition and sleep apnea. As previously noted, a SOC responsive to these issues has not been associated with the claims file. As previously noted, VACOLS indicates that VA is aware of the March 2018 NOD and in the process of developing all of the issues in the March 2018 NOD except for the issue of entitlement to an effective date earlier than April 12, 2016 for the grant of service connection for radiculopathy of the right lower extremity. Therefore, the Board must take special jurisdiction over that single issue and remand it for the issuance of an SOC, because no SOC responsive to the claim has been issued; and VACOLS does not indicate that the RO is aware of or is otherwise processing the Veteran’s appeal on this issue. See Manlincon. 3. Entitlement to an effective date earlier than June 30, 2006 for the assignment of a combined disability rating of 80 percent is remanded The Veteran submitted a NOD in May 2016 arguing that he was entitled to an effective date earlier than June 30, 2006 for the assignment of a combined disability rating of 80 percent. A SOC has not been issued responsive to this NOD, and VACOLS does not indicate that VA is aware of the May 2016 NOD or is otherwise developing the Veteran’s claim. Therefore, this matter must be remanded for the purposes of issuing a SOC responsive to the May 2016 NOD. See Manlincon. The matters are REMANDED for the following action: 1. Copies of pertinent updated treatment records should be obtained and added to the claims file. 2. Following completion of the above, arrange to provide the Veteran with a VA examination in order to answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran manifested a diagnosis of PTSD at any time from September 2010 to present? Why or why not? (b.) Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s claimed in-service stressors were the result of fear of hostile military or terrorist activity and sufficient to support a diagnosis of PTSD? Why or why not? (c.) Is it at least as likely as not (50 percent or greater probability) that a medical link exists between a current diagnosis of PTSD and an in-service stressor? Why or why not? (d.) Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between an in-service incurrence and a current diagnosis of an acquired psychiatric disorder other than PTSD? Why or why not? (e.) Previously, a VA examiner opined that the Veteran’s acquired psychiatric disorder could have been caused by any number of reasons other than his experiences during a period of service. Do you agree? Why or why not? If so, please list any causes other than experiences during his period of service, based on the medical evidence in the claims file, your personal observations of the Veteran, his medical history, or any other information that you deem pertinent. NOTE: In answering these questions, the examiner is reminded to indicate what facts (or data) and what principles (or methods) were relied upon in forming these opinions. 3. Finally, furnish the Veteran and his representative with a SOC pertaining to the following claims: entitlement to an effective date earlier than April 12, 2016 for the grant of service connection for radiculopathy of the right lower extremity; and entitlement to an effective date earlier than June 30, 2006 for the assignment of a combined disability rating of 80 percent. The Veteran should be appropriately-notified of the time limits to perfect his appeal of this issues. These issues should not be returned to the Board unless the Veteran perfects the appeal by filing a timely substantive appeal following issuance of an SOC BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel