Citation Nr: 18158046 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 16-24 606 DATE: December 18, 2018 REMANDED Entitlement to service connection for headaches, to include migraines is remanded. Entitlement to service connection for shortness of breath is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a kidney condition is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a vision condition is remanded. Entitlement to service connection for neuropathy of the upper left extremity is remanded. Entitlement to service connection for neuropathy of the lower left extremity is remanded. Entitlement to service connection neuropathy of the lower right extremity is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression is remanded. Entitlement to a disability rating in excess of 10 percent for a history of a back injury is remanded. Entitlement to an initial disability rating in excess of 10 percent for right leg radiculopathy associated with a history of a back injury is remanded. Entitlement to an earlier effective date prior to May 6, 2014 for the award of service connection for right leg radiculopathy associated with a history of a back injury. Entitlement to an earlier effective date prior to May 6, 2014 for the award of a 10 percent rating for service-connected history of a back injury. REASONS FOR REMAND The Veteran served on active duty from July 1983 to March 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision. In light of the U. S. Court of Appeals for Veterans Claims (Court) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran’s claim for depression and anxiety was recharacterized as listed above as entitlement to service connection for an acquired psychiatric disorder. As emphasized in Clemons, though a Veteran may seek service connection for depression and anxiety, the Veteran’s claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” 1. Treatment Records The claims file includes Department of Veteran Affairs (VA) treatment records from September 2014 to May 2016. The Veteran’s VA treatment records indicate that he received private treatment prior to and during the appellate period. Therefore, upon remand the Veteran must be given the opportunity to identify his private treatment providers and allow VA to obtain any outstanding private treatment and VA treatment records. 2. Entitlement to service connection for headaches The Veteran contends that his headaches should be service-connected. The Veteran’s VA treatment records note in September 2015 that the Veteran had chronic headaches for at least the past two years. The Veteran’s service treatment records note that the Veteran had severe headaches in December 1983. The Board cannot make a fully-informed decision on this because no VA examiner has opined whether the Veteran’s headaches are etiologically related to service. Therefore, upon remand the Veteran should be provide an examination to determine if the Veteran’s current headaches are related to his service. 3. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has a psychiatric disorder that should be service-connected. VA treatment records suggest that the Veteran had depression and that he was treated by medication for a short time. Upon remand the Veteran should undergo a VA psychiatric examination to determine whether any psychiatric disorder is etiologically related to service. 4. Entitlement to service connection for shortness of breath The Veteran contends that he should be service connected for a disability manifested by shortness of breath. The Veteran’s service treatment records note that in October 1983 the Veteran had an upper respiratory infection. Therefore, if upon obtaining the Veteran’s post-service treatment records there is any evidence of a current respiratory disorder, then the Veteran should be provided a VA examination. 5. Entitlement to a disability rating in excess of 10 percent for a history of a back injury and a rating in excess of 10 percent for right left radiculopathy The Veteran contends that his service-connected back disability had worsened in severity. The Veteran underwent a VA examination in September 2014. The VA examination does not meet the requirements of Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In Correia, the Court clarified additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See also Sharp v. Shulkin, 29 Vet. App. 26, 22 (2017) (providing that the examiner should “estimate the functional loss that would occur during flares”). Therefore, the Board finds that a new VA examination is warranted to determine the severity of the Veteran’s service-connected back disability that complies with Sharp and Correia. Further, the examination is expected to result in findings relevant to the rating for the Veteran’s right leg radiculopathy. 6. Entitlement to an earlier effective date prior to May 6, 2014 for a disability rating of 10 percent for a history of a back injury and an award of service connection for right leg radiculopathy associated with a history of a back injury. A Manlincon issue has been raised by the record with regard to the effective date for the award of a 10 percent disability rating for a back disability and for the award of service connection for right leg radiculopathy associated with the back disability. See Manlincon v. West, 12 Vet. App. 238 (1999). The VA regional office (RO) granted an award of 10 percent disability rating for the service-connected back disability, and service connection and an award of a 0 percent rating for right leg radiculopathy in a September 2014 rating decision. The Veteran filed a notice of disagreement (NOD) in December 2014. The Veteran disagreed with the ratings and the effective dates. This constituted a timely NOD, initiating an appeal of this claim. 38 C.F.R. § 20.201. To date, the Veteran has been provided a SOC for the Veteran’s disability rating for his back disability and his right leg radiculopathy, however the Veteran was not provided an SOC or given an opportunity to perfect the appeals for the effective date claims to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement). Therefore, the Board must remand these claims, rather than merely referring it. A SOC must be issued and the Veteran given an opportunity to perfect the appeal to the Board. See Manlincon, 12 Vet. App. at 238. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an earlier effective date for the award of service connection for the right leg radiculopathy earlier than May 6, 2014 AND entitlement to an earlier effective date for the award of a 10 percent rating disability for the service-connected history of a back injury earlier than May 6, 2014. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration 2. Obtain any updated relevant VA treatment records. 3. Ask the Veteran to identify his private treatment providers and complete a VA Form 21-4142. Make two requests for the identified and authorized records unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology of the Veteran’s headaches. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service treatment for severe headaches. A compete rationale for any expressed opinion should be provided by the examiner. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorders. The examiner must opine as to the following: (a.) Identify any current acquired psychiatric disorder to include, depression, and/or anxiety, if appropriate. (b.) For each acquired psychiatric disorder diagnosed, the examiner must opine as to whether the disorder is at least as likely as not related to an in-service injury, event, or disease. (c.) A full and complete rationale must be provided for all expressed opinions. 6. If any obtained treatment records indicate a lung and/or respiratory disorder related to shortness of breath, then schedule the Veteran for an examination by an appropriate clinician to determine the etiology of the Veteran’s lung and/or breathing disorder related to shortness of breath. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service treatment for an upper respiratory infection. A compete rationale for any expressed opinion should be provided by the examiner. 7. Schedule the Veteran for an examination of the current severity of his service-connected back disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living. The examiner should ensure that findings related to all associated neurological impairment to include right leg radiculopathy are identified and described. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel