Citation Nr: 18159228 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-56 829 DATE: December 19, 2018 REMANDED Entitlement to service connection for a gastrointestinal disability, to include as secondary to service-connected lumbosacral strain (claimed as side effects of medication for lumbosacral strain), is remanded. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from January 1984 to October 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 1. Service Connection – Gastrointestinal Disability The Veteran has asserted that he has a gastrointestinal disability that is the result of prescription pain medication prescribed for treatment of his service-connected lumbosacral strain. Indeed, the evidence of record shows that the Veteran has diagnoses of gastroesophageal reflux disease (GERD) and constipation, and that he is prescribed pain medication for his low back. Further, the Veteran is currently service-connected for a lumbosacral strain. In light of the Veteran’s statements and his current diagnoses of GERD and constipation, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current gastrointestinal disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service Connection – Acquired Psychiatric Disability The Veteran has asserted that he has an acquired psychiatric disability that was caused or worsened by his service-connected lumbosacral strain. A review of the record shows that the Veteran was most recently afforded a VA psychological examination in April 2012. At that time, the VA examiner determined that the Veteran’s major depressive disorder was less likely proximately due to or the result of his service-connected lumbosacral strain. In this regard, the examiner noted the Veteran’s childhood abuse and sexual assault that were the cause of his mental health symptoms occurred prior to active service. The Board finds the April 2012 VA medical opinion inadequate to adjudicate the claim. In this regard, the VA examination report does not adequately address aggravation by a service-connected disability. Therefore, the Board concludes that the Veteran should be afforded another VA examination to determine the nature and etiology of any acquired psychiatric disability. 3. Increased Rating – Lumbosacral Strain The Board notes that in a recent decision the United States Court of Appeals for Veterans Claims (Court) found that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In other words, if there is not a discussion of those measurements in a VA examination report, the examination is inadequate, unless the examiner determines that those range of motion testing listed could not be conducted. Correia v. McDonald, 28 Vet. App. 158 (2016). A review of the record shows that the Veteran was most recently afforded a VA examination for his lumbosacral strain in November 2015. A review of that examination report fails to show findings that are consistent with the holding in Correia. Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his service-connected lumbosacral strain. 4. Increased Rating – Right Lower Extremity Peripheral Neuropathy A review of the record shows that the Veteran contends the severity of his service-connected right lower extremity peripheral neuropathy is worse than reflected by the currently assigned rating. A review of the record shows that he has yet to be afforded a VA examination for his peripheral neuropathy. Rather, the Veteran was afforded VA examinations in April 2012 and November 2015 for his service-connected lumbosacral strain. At the April 2012 VA examination, the examiner indicated the Veteran did not have signs or symptoms due to radiculopathy. Then, the examiner noted that the Veteran did have other signs or symptoms of radiculopathy. At the November 2015 VA examination, the examiner noted the Veteran had mild intermittent, usually dull, pain in his right lower extremity. The Board finds the April 2012 VA examination inadequate to decide the claim as it is internally inconsistent. The Board finds the November 2015 VA examination inadequate to decide the claim as it does not adequately provide information required for rating purposes. Therefore, the Board finds that the Veteran should be afforded a VA examination to determine the current level of severity of all impairment resulting from his right lower extremity peripheral neuropathy. 5. TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claim currently on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present gastrointestinal disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present gastrointestinal disability was caused by or chronically worsened by any service-connected disability, to include as the result of prescription medication prescribed for treatment of the Veteran’s service-connected back disability. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present psychiatric disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based on a review of the record and an evaluation of the Veteran, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, and proximate thereto. Once all psychiatric disabilities have been identified, the examiner should provide the following findings: Does the Veteran have a psychiatric disability that clearly and unmistakably existed prior to his active service? For any disability found to clearly and unmistakably exist prior to the Veteran’s active service, was that disability clearly and unmistakably NOT aggravated by service? In forming the opinion, the examiner must note that the Veteran’s lay statements alone are not a sufficient basis with which to support a finding that a disability clearly and unmistakably existed prior to service. With regard to any currently present psychiatric disability determined to NOT clearly and unmistakably exist prior to the Veteran’s active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability is etiologically related to the Veteran’s active service. With regard to any currently present psychiatric disability determined to NOT clearly and unmistakably exist prior to the Veteran’s active service, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present psychiatric disability was caused by or chronically worsened by any service-connected disability. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected lumbosacral strain. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 5. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected peripheral neuropathy of the right lower extremity. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 6. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development found to be warranted. 7. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel