Citation Nr: 18156758 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 13-36 096 DATE: December 11, 2018 REMANDED Entitlement to service connection for a right fourth finger disability is remanded. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability, is remanded. Entitlement to an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), Major Depressive Disorder, alcohol use disorder, and cannabis use disorder (hereinafter, acquired psychiatric disability) is remanded. Entitlement to an increased initial evaluation for service-connected degenerative arthritis of the lumbar spine, evaluated 20 percent disabling prior to January 3, 2018, and 40 percent disabling, thereafter, is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to July 25, 2016, is remanded. REASONS FOR REMAND The Veteran had active military service from February 1997 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the VA Regional Office (RO) in Portland, Oregon. During the pendency of the appeal, original jurisdiction has been transferred to the RO in Roanoke, Virginia. In March 2015, the Veteran presented oral testimony to a Veterans Law Judge (VLJ) in support of his appeal. A transcript of this hearing is of record. These issues, among others, were previously before the Board in July 2016 and January 2017, when they were remanded for additional development. After the January 2017 Board remand, the Veteran was notified that the VLJ who conducted the March 2015 hearing was no longer employed at the Board. While he initially elected to participate in another Board hearing, he withdrew the request for a second Board hearing in September 2018. 38 C.F.R. § 20.704 (d) (2017). As such, the Board may proceed. Characterization of issues on appeal The Veteran’s initial claim to establish service connection for an acquired psychiatric disability was expanded by the Board in January 2017 to include all psychiatric disabilities of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Since that time, service connection has been established for PTSD, Major Depressive Disorder, alcohol use disorder, and cannabis use disorder. As such, this issue has been recharacterized as stated on the title page to more accurately reflect the benefits which are being sought on appeal. In a January 2018 rating decision, the Agency of Original Jurisdiction (AOJ) increased the initial evaluation assigned for the Veteran’s service-connected low back disability and established TDIU from July 25, 2016. Contrary to the AOJ’s statements, these allowances do not represent a full grant of the benefits sought regarding either issue. Accordingly, the issues remain in appellate jurisdiction and have been recharacterized as stated on the title page. AB v. Brown, 6 Vet. App. 35, 38-39 (1993); Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 1. Entitlement to service connection for a right fourth finger disability is remanded. 2. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability, is remanded. 3. Entitlement to an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), Major Depressive Disorder, alcohol use disorder, and cannabis use disorder (hereinafter, acquired psychiatric disability) is remanded. 4. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to July 25, 2016, is remanded. Initially, the Board notes that the record on appeal is incomplete, and the outstanding, reasonably identified evidence is pertinent to all of the issues on appeal. It appears that the Veteran has been seeking disability benefits from the Social Security Administration (SSA) during the pendency of his VA appeal, and the AOJ most recently requested updated records associated with the SSA claim/appeal in February 2017. However, in October 2018, the Veteran submitted to the AOJ a September 2018 favorable decision from the SSA which alludes to evidence pertinent to the issues on appeal that post-dates the last records request from the AOJ to the SSA in February 2017. These records include several private psychiatric and physical assessments and an August 2018 SSA hearing transcript in which two vocational specialists participated. On remand, the AOJ must obtain these federal records and associate them with the file. 5. Entitlement to an increased initial evaluation for service-connected degenerative arthritis of the lumbar spine, evaluated 20 percent disabling prior to January 3, 2018, and 40 percent disabling, thereafter, is remanded. The February 2017 and January 2018 VA spine examination reports note that the Veteran experiences frequent flare-ups of low back symptoms, resulting in pain and additional limitation of motion. However, this additional functional impairment (during any of his flare-ups) is not adequately quantified, and thus, the examinations are not adequate for the purpose of readjudicating the issue. In light of above, a remand is necessary to provide the Veteran an adequate spine examination. To ensure that the examiner is fully apprised of the Veteran’s complete medical picture, updated VA and private treatment records should be sought, obtained, and associated with the record. The matters are REMANDED for the following actions: 1. The AOJ must contact SSA and request all evidence on which the favorable September 2018 decision was based. 2. The AOJ must obtain and associate with the file all updated records of VA treatment from the VAMC in Richmond, Virginia, and all associated facilities, dated after July 23, 2018. 3. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for the disabilities subject to this remand. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected low back disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran’s service-connected low back disability. *To the degree possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of his service-connected low back disability. *In addition to the information requested by the standard DBQ relating to disabilities of the thoracolumbar spine, the examiner must specifically address the following: - Provide findings for limitation of motion (expressed in degrees) for the Veteran’s thoracolumbar spine including passive motion with weight-bearing and nonweight-bearing, and during a flare-up of symptoms, currently and restrospectively. In doing so, please review the prior VA examination reports, and based on the information therein, provide the requested findings for each examination undertaken during the pendency of the appeal (December 2010, February 2017, January 2018, and currently). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must undertake any development necessary to adequately readjudicate the remaining issues on appeal, to include requesting VA examination and/or obtaining medical opinions. 6. Thereafter, the AOJ must readjudicate the issues on appeal. If the benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel