Citation Nr: 18152865 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 14-11 087 DATE: November 26, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative joint disease with degenerative disc disease at L4-L5 and L5-S1 is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, and including as secondary to service-connected lumbar spine degenerative joint disease with degenerative disc disease at L4-L5 and L5-S1 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to August 1976. He served honorably in the United States Army. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2013 and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The June 2013 decision assigned an initial rating of 10 percent for the Veteran’s service-connected back disability; the June 2014 decision denied service connection for depression. This matter was previously before the Board in January 2018 when a rating in excess of 10 percent for the Veteran’s back disability was denied. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). Pursuant to a granted joint motion for remand dated August 2018, the Court vacated the Board’s January 2018 decision and remanded the Veteran’s appeal for an increased rating for his back disability to the Board for further development. Since this matter was last before the Board in January 2018, it has been reassigned to the undersigned Veterans Law Judge. During the pendency of the increased rating claim, the Veteran’s claim for service connection for depression has been timely appealed to the Board. 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative joint disease with degenerative disc disease at L4-L5 and L5-S1 is remanded. Here, pursuant to a granted joint motion for remand dated August 2018, the Court vacated the Board’s January 2018 decision and remanded the Veteran’s appeal for an increased rating for his back disability to the Board for further development. As an initial matter, the Court ordered that the Veteran be afforded an updated VA examination in keeping with evidence he has submitted that his back disability has progressively worsened. Accordingly, the Board is remanding the Veteran’s claim consistent with the Court’s order. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, and including as secondary to service-connected lumbar spine degenerative joint disease with degenerative disc disease at L4-L5 and L5-S1 is remanded. Here, the Veteran has contended that his depression has been aggravated by his service-connected back disability. The Board finds that although the May 2014 VA examiner issued a negative nexus opinion regarding secondary service connection based on causation, the examiner did not address aggravation. The Board notes that the examination report states that the Veteran had depression that became worse in 2011 and his back pain also became worse in 2011; an August 2013 private clinician opined that as the Veteran’s back pain has worsened he has become more irritable, does not want to be around people, and feels helpless and hopeless at times. Therefore, not only is the May 2014 VA examiner’s opinion insufficient because it did not address both avenues for granting secondary service connection, it is also unresponsive to the Veteran’s specific contentions regarding why his claim should be granted and the existing medical evidence. Accordingly, as an adequate aggravation opinion is not otherwise of record, one must be obtained on remand. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. The matters are REMANDED for the following action: 1. Please associate with the claims file all outstanding VA and non-VA medical records pertaining to the Veteran’s service-connected back disability and nonservice-connected depression. 2. For the Veteran’ service-connected back disability, after the record is determined to be complete, please schedule the Veteran for a VA examination and a medical opinion to determine the nature and current severity of the service-connected back disability. The claims file should be made available to and reviewed by the examiner. In particular, the examiner should: a. Opine as to whether it is at least as likely as not (50 percent or greater probability) that the March 2012 VA examiner’s diagnosis of scoliosis resulted from muscle spasm or guarding due to the service-connected lumbar spine degenerative joint disease with degenerative disc disease at L4-5 and L5-S1. b. Opine as to whether the evidence in the record (February 2012 VA treatment record) referring to a slight limp is evidence of abnormal gait. c. Conduct range of motion testing, specifically noting the ranges of motion in degrees on active and passive motion, weight-bearing and nonweight-bearing, including with comparison to the opposite undamaged joint (if applicable). If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done. d. Consider the Veteran’s reports of flare-ups and portray any related functional impairment in terms of additional range of motion loss. The frequency, duration, characteristics, and severity should also be noted. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done. The examiner should consider and discuss the relevant evidence as necessary. A complete explanation should be provided for all opinions given. If an opinion cannot be provided without resorting to speculation, such should be stated and an explanation as to why this is so given with a note as to what, if any, additional evidence would permit such an opinion to be made. 3. For the Veteran’s nonservice-connected depression, after the record is determined to be complete, please obtain an addendum medical opinion. [If another examination is needed for the opinion sought, it should be arranged.] The claims file should be made available to and reviewed by the clinician. The opinion must address the following: a. Is it at least as likely as not (50 percent or higher probability) that the Veteran’s depression is aggravated by his service-connected back disability, to include medication used to treat this disability? The opinion provider should note that the term “aggravated by” refers to “any increase in severity” of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the opinion is to the effect that the service-connected back disability aggravated the Veteran’s depression, please identify, to the extent possible, the degree of additional disability (pathology/impairment) resulting from such aggravation, indicating the “baseline” severity of such disability prior to any aggravation by a service-connected disability and the level of severity existing after the aggravation occurred. A complete rationale for all opinions rendered must be provided. If an opinion cannot be provided without resorting to speculation, the opinion provider must   explain why this is so and must identify what additional information, if any, would be required to provide an opinion. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fales, Associate Counsel