Citation Nr: 1806715 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-12 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. The propriety of severance of the separate10 percent disability rating for radiculopathy of the right lower extremity associated with back strain, from October 1, 2014. 2. The propriety of severance of the separate10 percent disability rating for radiculopathy of the left lower extremity associated with back strain, from October 1, 2014. 3. Entitlement to a separate rating in excess of 10 percent for radiculopathy of the right lower extremity from June 15, 2012 to October 1, 2014. 4. Entitlement to a separate rating in excess of 10 percent for radiculopathy of the left lower extremity from June 15, 2012 to October 1, 2014. 5. Entitlement to an effective date prior June 15, 2012 for the award of a separate 10 percent rating for radiculopathy of the right lower extremity. 6. Entitlement to an effective date prior June 15, 2012 for the award of a separate 10 percent rating for radiculopathy of the left lower extremity. 7. Entitlement to a rating in excess of 10 percent for back strain. 8. Entitlement to a rating in excess of 10 percent for osteoarthritic narrowing of the medial left knee joint space. 9. Entitlement to service connection for degenerative disc disease of the low back. 10. Entitlement to service connection for an acquired psychiatric disorder, including depression and anxiety, not otherwise specified, to include as secondary to service-connected disabilities. 11. Entitlement to service connection for bilateral hip disorder, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: James G. Fausone, Attorney-at-Law ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from March 1991 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011, May 2013, July 2014 and January 2015 rating decisions issued by Regional Offices (RO) of the Department of Veterans Affairs (VA). The June 2011 rating decision continued 10 percent ratings each for the Veteran's service-connected back and knee disabilities. The May 2013 rating decision granted service connection for radiculopathy of the right and left lower extremities, effective June 15, 2012, and denied service connection for a bilateral hip disorder. The July 2014 rating decision severed service connection for radiculopathy of the right and left lower extremities, effective October 1, 2014. The January 2015 rating decision denied service connection for depression and anxiety disorder. In February 2016, the Board remanded the issues of increased ratings for back strain and osteoarthritic narrowing of the medial left knee joint space for further development. The Board finds that the issue of service connection for degenerative disc disease of the low back is part and parcel of or associated with the Veteran's increased rating claim for back strain as well as the issues pertaining to radiculopathy of the lower extremities. As they are all inextricably intertwined, the Board finds this issue should also be viewed as being in appellate status and, therefore has been included on the title page. With respect to the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, the Board notes that in a February 2002 rating decision, the RO denied entitlement to service connection for posttraumatic stress disorder (PTSD) as there was no verifiable stressor or diagnosis. The Veteran did not appeal this decision, and it became final. In May 2014, the Veteran filed a claim for entitlement to service connection for acquired psychiatric disability, to include as secondary to orthopedic disabilities. As the claim arises from complaints related to different diagnoses as well as a different theory of entitlement, new and material evidence is not necessary to consider it. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim based on a new diagnosis is to be treated as a new claim, obviating the need for new and material evidence). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During the course of the appeal for an increased rating for the Veteran's back strain, the RO awarded service connection for radiculopathy of the lower extremities in a May 2013 rating decision. However, in a June 2014 rating decision, the RO subsequently severed service connection finding that there was clear and unmistakable error in the May 2013 rating decision. The RO noted that a May 2013 VA examiner found that the Veteran's radiculopathy was not due to the Veteran's back strain, but rather due to his nonservice-connected degenerative disc disease. The RO further stated that a December 2013 VA examiner also shared the same opinion. The Board observes that the May 2013 examiner based his opinion on a March 2011 VA examination where the examiner found no causal connection between disc disease and the service-connected back strain. The Board notes that the March 2011 VA examiner found that degenerative disc disease had no casual nexus with back strain occurring 19 years prior; however, the examiner offered no rationale for this opinion. The December 2013 examiner rationalized that the lumbar degenerative disc disease was not related to service or the service-connected lumbar strain. The examiner rationalized that the Veteran was discharged from active military service in 1992. Risk factors that the Veteran had/has for this back condition, include advancing age and occupation of construction, also obesity, which at one time since the military his weight was over 200 pounds. The examiner also noted that the Veteran was discharged in 1992 and in 2011, the diagnosis of mild osteoarthritic degenerative disc was noted per x-ray. Again, in 2012, Grade 1 anterior spondylolisthesis of the L5 with degenerative disc changes, vacuum phenomenon and endosteal sclerosis of the contiguous endplates was diagnosed per x-ray. However, significantly, none of these VA examinations address an August 1995 x-ray of the low back, which was done when the Veteran filed his initial claim for service connection. Importantly, the x-ray impression was narrowing of L5-S1 interspace; air in the disc space, compatible with disc disease; osteophytic lipping; and spondylolisthesis of L5 and S1, minimal degrees. Rather, the examiners all appear to base their opinions on the incorrect fact that the Veteran was diagnosed with degenerative disc disease many years later in 2011. Moreover, although the August 1995 VA examiner diagnosed chronic low back pain, probably secondary to mechanical strain. The x-rays were not available at the time of this report. These x-ray findings were also noted in the August 1995 rating decision that awarded service connection for the Veteran's low back disorder. In light of much earlier x-ray evidence of degenerative disc disease that has not been considered by any of the VA examiners, the Board finds that another VA examination with opinion is necessary to address the etiology of the Veteran's degenerative disc disease with associated lower extremity radiculopathy. The Board notes that in February 2016, the Board remanded the issues of increased ratings for back strain and left knee disability to afford the Veteran VA examinations, which were done in September 2016. However, subsequently, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 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. Id.; see also 38 C.F.R. § 4.59. Unfortunately, the September 2016 VA examinations for the back and left knee do not comply with the new requirements outlined by the Court in Correia. In this regard, there is no indication that there was any joint testing conducted for pain on both active and passive motion, in weight-bearing and nonweight-bearing for the back or the Veteran's knees. As such, these issues must also be returned for additional VA examinations. The Veteran is also seeking service connection for an acquired psychiatric disability and bilateral hip disorder, both to include as secondary to his service-connected disabilities. The May 2013 VA examination diagnosed bilateral osteoarthritis of the hips. The examiner noted that the weight of the evidenced did not support that the Veteran's service-connected back strain was the causal etiology of his bilateral hip osteoarthritis. The examiner indicated that the risk factor for development of the osteoarthritis of the hips was advancing age and his occupation as construction worker. However, the examiner did not address whether the Veteran's service-connected disabilities aggravated his bilateral hip disorder. Moreover, this opinion may be affected if degenerative disc disease is found to be related to service or the Veteran's service-connected low back strain. The Veteran was afforded a VA mental disorder examination in December 2014. The examiner found that the Veteran did not meet the diagnostic criteria for depression. However, the examiner diagnosed anxiety not otherwise specified. The examiner then simply indicated that anxiety was due to partner relationship. However, the examiner provided no rationale for this finding. Moreover, the examiner did not offer an opinion as to whether the Veteran's service-connected disabilities aggravated his anxiety. Further, neither of the opinions address whether the Veteran's bilateral hip disorder or acquired psychiatric disorder is directly related to service. As such, the VA examinations with opinions are inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).Given the deficiencies described above, the Board finds that these issues must also be returned for new VA examinations. Lastly, the Veteran receives continuing treatment for her service-connected disability at the VA. The most recent records associated with the claims file date from November 2016. In light of the need to remand, the Board finds that efforts to obtain any additional VA treatment records dated from November 2016 to the present Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from November 2016 to the present. 2. The Veteran should be afforded an appropriate VA examination to address the etiology of the Veteran's low back degenerative disc disease with associated radiculopathy of the lower extremities as well as the current nature and severity of his service-connected low back disorder. Following a review of the record, the examiner should offer an opinion as to the following: (a) Whether it is at least as likely as not (a 50% or higher degree of probability) that degenerative disc disease of the low back manifested during active duty; and (b) Whether it is at least as likely as not (a 50% or higher degree of probability) that degenerative disc disease of the low back is proximately due to, or caused by, the Veteran's service-connected low back strain; and (c) Whether it is at least as likely as not (a 50% or higher degree of probability) that degenerative disc disease of the low back has been aggravated by the Veteran's service-connected low back strain. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. In proffering these opinions, the examiner must specifically address the August 1995 VA examination and contemporaneous x-ray. 3. The Veteran should be afforded an appropriate VA examination to address the current nature and severity of his service-connected left knee disorder. 4. The Veteran should be afforded an appropriate VA examination to address the etiology of any diagnosed acquired psychiatric disorder, to include depression and anxiety. Following a review of the record, the examiner should clearly delineate all diagnosed acquired psychiatric disorders and then offer an opinion as to the following: (a) Whether it is at least as likely as not (a 50% or higher degree of probability) that any acquired psychiatric disorder manifested during active duty; and (b) Whether it is at least as likely as not (a 50% or higher degree of probability) that any acquired psychiatric disorder is proximately due to, or caused by, the Veteran's service-connected disabilities; and (c) Whether it is at least as likely as not (a 50% or higher degree of probability) that any acquired psychiatric disorder have been aggravated by the Veteran's service-connected disabilities. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. 5. The Veteran should be afforded an appropriate VA examination to address the etiology of any diagnosed bilateral hip disorder. Following a review of the record, the examiner should clearly delineate all diagnosed bilateral hip disorders and then offer an opinion as to the following: (a) Whether it is at least as likely as not (a 50% or higher degree of probability) that any bilateral hip disorder manifested during active duty; and (b) Whether it is at least as likely as not (a 50% or higher degree of probability) that any bilateral hip disorder is proximately due to, or caused by, the Veteran's service-connected disabilities; and (c) Whether it is at least as likely as not (a 50% or higher degree of probability) that any bilateral hip disorder have been aggravated by the Veteran's service-connected disabilities. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. 6. Readjudicate the appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States 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 (2014). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).