Citation Nr: 18155710 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 15-10 182A DATE: December 6, 2018 REMANDED Entitlement to rating in excess of 20 percent for lumbar degenerative disc disease is remanded. Entitlement to a rating in excess of 10 percent for depression is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1992 to May 1995. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously before the Board in February 2014, at which time it was remanded for the issuance of a statement of the case (SOC). The RO issued an SOC in March 2015 denying an evaluation higher than 20 percent for lumbar degenerative disc disease and denying an evaluation higher than 10 percent for depression, which is service connected on a secondary basis to the lower back disability. The Veteran thereafter perfected an appeal of these issues. Although the Veteran requested a hearing on his VA Form 9 appeal, he did not appear for the hearing and his attorney has informed the Board that the Veteran waived his appearance at the hearing. Accordingly, the hearing request is considered to have been withdrawn pursuant to 38 C.F.R. § 20.704(e). The Veteran’s Contentions The Veteran contends that the March 2015 SOC is inadequate because the RO failed to obtain comprehensive physical and psychological examinations so as to thoroughly represent the Veteran’s conditions. The Veteran requests that the matter be remanded for further development. Entitlement to increased ratings for lumbar degenerative disc disease and depression is remanded. The March 2015 SOC considered VA treatment records dated from April 2009 to March 2015, a VA examination of the spine conducted in May 2010 and a VA examination for mental disorders (except PTSD and eating disorders) conducted in April 2011. Psychiatric notes in the VA treatment records reflect periods of worsening depression, including the assessment that the Veteran was suffering from “severe” depression. Statements from the Veteran and his wife reflect worsening back pain and associated depression. Specifically, statements submitted after the VA examinations describe the Veteran as increasingly limited in his activities because of his back pain, which results in isolation and depression. Accordingly, the Board agrees with the Veteran that additional VA examinations are required prior to adjudication of the Veteran’s increased ratings claim. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination). The Board also notes that the Veteran has a pending claim for post-traumatic stress disorder (PTSD). The examiner should determine whether the Veteran’s depression symptoms are distinctly attributable to the non-service connected disability. 38 C.F.R. § 3.102; see Mittleider v. West, 11 Vet. App. 181, 182 (1998). The matters are REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his conditions that are not already of record. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment records and associate them with the claims file. 2. After number 1 has been accomplished, schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of his service-connected lumbar degenerative disc disease disability. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination and all necessary tests should be performed. All findings should be reported in detail. All indicated tests and studies should be performed, including range or motion studies. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected back disability, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current nature and severity of his service-connected depression. The entire claims file should be made available to, and be reviewed, by the VA examiner. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. The examiner should identify all symptoms and impairment associated with the Veteran’s depression, noting their frequency and severity. The examiner should also expressly opine as to whether the symptoms attributable to the depression may be differentiated from those associated with the claimed PTSD. The examiners are advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiners should provide a reason for doing so. A complete rationale for the examiners’ opinions should be provided, citing to specific evidence of record, as necessary. If the examiners cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court of Appeals for Veterans’ Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel