Citation Nr: 18160787 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-36 506 DATE: December 28, 2018 ORDER Entitlement to an earlier effective date than March 27, 2013 for the award of a 20 percent rating for service-connected low back disability is granted. Entitlement to an earlier effective date than June 12, 2007 for the award of service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to more than a 20 percent rating for service-connected degenerative disc and joint disease of the thoracolumbar spine (previously rated as lumbar strain) is remanded. Entitlement to more than a 30 percent rating for service-connected posttraumatic stress disorder with depressive disorder (psychiatric disability) is remanded. FINDINGS OF FACT 1. The Veteran sought service connection for low back disability in a June 2007 claim that was granted in January 2008 as “lumbar strain”; while the Veteran did initially appeal the rating assigned at that time, a final August 2012 Board decision denied a higher rating. 2. The current rating decision on appeal granted a 20 percent rating sua sponte, effective March 27, 2013, after VA received an examination report (ordered in conjunction with a tangential but separate claim) of the same date, based on worsening of limitation of motion due to thoracolumbar degenerative disc and joint disease; thus, the effective date assigned is also the applicable date of claim in this matter. 3. Crucially, however, a review of the pertinent medical evidence shows that, on October 5, 2012 (i.e., in the year preceding that date of claim), VA treatment records already show the Veteran reported chronic low back pain that was no longer effectively treated by Oxycodone (a powerful opioid) and a physical evaluation found that lumbar pain was elicited by a supine leg raising test, that the Veteran had developed pain on bending and standing as well as with “left and right tilting,” and that a diagnosis of lumbar pain due to degenerative disc disease and intervertebral disc displacement was warranted. 4. Considering the above with the fact that the worsening conceded by the award on appeal is explicitly based on limitation of motion and coincides with a recharacterization of the service-connected disability from lumbar strain to degenerative disc and joint disease of the thoracolumbar spine, the Board finds the evidence is at least in relative equipoise as to whether “it is factually ascertainable based on all evidence of record that an increase in disability had occurred” in the year preceding the date of claim (i.e., the date VA received evidence prompting sua sponte adjudication by the AOJ) under 38 C.F.R. § 3.400(o)(2); consequently, an earlier effective date of October 5, 2012 is warranted. 5. The Veteran filed his initial claim seeking service connection for a psychiatric disability in June 2007, within a month of separation from active duty on May 20, 2007 and the August 2012 Board decision that originally granted service connection (which was implemented in the rating decision currently on appeal) concedes that psychiatric symptoms are documented in service; therefore, the applicable regulations provide that an earlier effective date of May 21, 2007 (the day following separation) is warranted for that award. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date than March 27, 2013 for the award of a 20 percent rating for service-connected low back disability have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 2. The criteria for an earlier effective date than June 12, 2007 for the award of service connection for an acquired psychiatric disability have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1994 to December 2000 and October 2002 to May 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from January and May 2014 rating decisions. For the reasons outlined above, the Board is granting the appeals for earlier effective dates in full, obviating any present need for further discussion thereof. REASONS FOR REMAND Entitlement to more than a 20 percent rating for service-connected low back disability and more than a 30 percent rating for service-connected psychiatric disability are remanded. A review of the record shows the Veteran’s most recent examinations of these disabilities were in 2013 and 2014, respectively. As capturing an accurate current disability picture is critical to adjudicating these claims, the Board finds a remand is appropriate at this time. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Then, arrange for the Veteran to be examined by an orthopedist to determine the current severity of his service-connected low back disability. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in sufficient detail to allow for application of the pertinent rating criteria. Range of motion studies must be completed, and must include active and passive motion and weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite, undamaged joint. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. The examiner MUST ALSO comment on or describe, to the extent possible, the impact the Veteran’s service-connected low back disability has on his functioning during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit from the Veteran subjective reports of his functioning under such conditions and consider such reports along with all other pertinent evidence. If the examiner is still unable to provide such an opinion, he or she MUST explain why that is so in specificity. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, arrange for the Veteran to be examined by a psychiatrist or psychologist to determine the current severity of his service-connected psychiatric disability. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pertinent symptoms, pathology, and impairment associated with such disability in sufficient detail to allow for application of the pertinent rating criteria. Specifically, the examiner MUST identify the degree of occupational and social impairment found on examination. The examiner must also identify, by diagnosis, all psychiatric disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record and, if any documented diagnoses are either not or no longer felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. If the Veteran is found to have other psychiatric diagnoses IN ADDITION TO his service-connected disability, the examiner must indicate whether there is clear evidence allowing for differentiation of the symptoms, pathology, or impairment attributable to service-connected and nonservice-connected diagnoses, and explain why. If so, the examiner must clearly identify all symptoms and impairment found and attribute them to their appropriate underlying diagnoses. The examiner must provide a detailed explanation (rationale) for all opinions. (By law, the Board may not rely on any conclusion not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may require clarification). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel