Citation Nr: 1808367 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-33 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a cold injury of the feet. 3. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease and degenerative disc disease of the lumbosacral spine with bulging intervertebral discs at three levels. 4. Entitlement to an initial rating in excess of 10 percent for left L5-S1 lower extremity radiculopathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from March 1982 to July 1982 and from May 2009 to July 2009, with additional service with the Army National Guard of Oregon and the Army Reserves. These matters are before the Board of Veterans' Appeals (Board) on appeal of January 2010, September 2010, and December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In her substantive appeal, the Veteran requested a Board hearing at a local VA office. See VA Form 9, Appeal to Board of Veterans' Appeals, received in December 2011. However, in August 2013 and March 2017, the Veteran submitted correspondence indicating that she wished to withdraw the hearing request. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Service Connection for an Acquired Psychiatric Disability The Veteran was afforded a VA mental health disorders (except PTSD and eating disorders) examination in September 2010. Based on a battery of psychological testing, to include the Minnesota Multiphasic Personality Inventory (MMPI), the examiner concluded that the Veteran over-reports symptoms of emotional disorder and memory difficulties and was therefore less likely than not to be credible in her self-reports of symptoms. The examiner declined to provide a diagnosis of depressive disorder, and instead diagnosed the Veteran only with cannabis abuse, nicotine dependence, pathological gambling, and personality disorder, not otherwise specified. The Veteran and her representative contend that the September 2010 VA examination report should not be relied upon to deny her claim because the examiner who conducted the examination was disciplined by the Board of Psychologist Examiners of the State or Oregon soon after the examination due to ethics violations and inadequate care. See, e.g., "Informal Hearing Presentation" dated in January 2018. A review of the website for the Board of Psychologist Examiners of the State of Oregon reveals that a stipulated order was issued in January 2011 reprimanding the September 2010 VA examiner for a number of reasons, to include his use of an outdated MMPI interpretation tool and adopting "'boiler-plate' interpretations in whole or in part when writing assessment reports." It is unclear whether the September 2010 VA examiner committed any of the violations of ethical principles discussed in the January 2011 stipulated order in conducting the September 2010 VA examination. However, given the examiner's reliance on the MMPI and other such testing in concluding that the Veteran was exaggerating her symptoms, the Board finds that the Veteran should be provided a new VA examination to ensure that there is a full and adequate examination as to her claim. Service Connection for Cold Injury Residuals The Veteran contends that her training at Fort Dix in March or April 1982 included spending three days conducting maneuvers and other exercises in the cold and snow. She asserts that during that time she could not feel her feet, that she now has numbness and discoloration in her toes, and that her toes become extremely painful when they get cold. See, e.g., VA Form 21-4138, Statement in Support of Claim, received in April 2010. Extensive efforts were made to obtain any service treatment records that may exist for the Veteran's period of active service in 1982. However, no such records could be obtained. See Memorandum dated in October 2010. Therefore, there is no contemporaneous evidence of record of any in-service complaint of cold injuries. Nevertheless, the Veteran's DD Form 214 for that period of active service shows that she entered active duty on March 12, 1982. The Board finds no reason to doubt the Veteran's account of undergoing training during a cold period in March or April 1982. Furthermore, she is considered competent to report current pain, numbness, and discoloration in her toes, and the Board finds no reason to question her credibility as to those reports. As such, the Board finds that the criteria for providing the Veteran an examination as to her claim have been met, and that the issue must be remanded so that the Veteran may be provided such an examination. See 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Increased Ratings for the Service-Connected Lumbosacral Spine Disability The Veteran was most recently provided an examination as to her service-connected disability of the lumbosacral spine in June 2016. The report for that examination includes range-of-motion measurements for the Veteran's lumbar spine and indicates that the Veteran did not show evidence of pain with weight-bearing. However, the examiner who conducted that examination did not specify whether the range-of-motion measurements were taken on active motion or on passive motion. In addition, the examiner did not indicate that he was unable to conduct active and passive range-of-motion testing, or that such testing was not necessary or not possible. Therefore, the examination report does not make clear the extent to which pain affects the Veteran's passive and active motion for the lumbar spine. The final sentence of 38 C.F.R. § 4.59 provides, in relevant part, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing . . . ." Therefore, to be adequate for rating purposes, an examination of the joints must, whenever possible, include the results of the range-of-motion testing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the June 2016 examination report does not include results for active and passive range-of-motion testing or a statement to the effect that such testing was not possible or is unnecessary in this case. Therefore, that examination is not adequate for rating purposes, and the case must be remanded so that the Veteran may be provided another examination to assess the current nature and severity of her service-connected lumbosacral spine disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination should also include neurological testing so that the current nature and severity of the Veteran's service-connected radiculopathy of the bilateral lower extremities, which is associated with the service-connected lumbosacral spine disability, may also be assessed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed acquired psychiatric disability, to include PTSD and depression. Provide a copy of this remand and the record to the examiner for review. Any tests and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a. Does the Veteran have a diagnosis of PTSD? If not, the examiner should discuss the notations of and references to PTSD found in the VA treatment notes of record. b. If so, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is related to an in-service stressor. c. Provide an opinion as to whether it is at least as likely as not that any acquired psychiatric disability other than PTSD demonstrated since service, even if currently resolved, had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. The examiner should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed cold-related injuries of the feet. Provide a copy of this remand and the record to the examiner for review. Any tests and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a diagnosable cold-injury condition of either foot that had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service, to include the in-service cold exposure that she has described. The examiner should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. The examiner should assume as true the Veteran's reported three-day exposure to cold while doing maneuvers and exercises in March or April 1982 despite the lack of contemporaneous medical records for that period. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected lumbosacral spine disability. The examination should include all tests and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to that disability. The record and a copy of this remand must be made available to the examiner. The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the lumbosacral spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. To ensure that the information requested herein is provided, the examination results should be recorded using VA Form 21-0960M-14, May 2013, Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) or any other form or DBQ that provides all of the same information as "Section V - Pain" found in VA Form 21-0960M-14, May 2013. In recording the ranges of motion for the Veteran's thoracolumbar spine, the examiner should note whether upon repetitive motion there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service-connected lumbosacral spine disability. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups in the service-connected lumbosacral spine disability. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that she is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. In providing opinions as to the Veteran's additional functional loss on repetitive use over time and during flare-ups, the examiner must note that VA regulations and guidelines anticipate that examiners will offer opinions as to additional functional loss on repetitive use over time and during flare-ups based on estimates derived from information procured from relevant sources, including lay statements from the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. This includes ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding additional functional loss on repetitive use over time and during flare-ups by alternative means. The examiner should also conduct neurological testing to assess the current nature and severity of the Veteran's service-connected radiculopathy of the bilateral lower extremities, which is associated with the service-connected lumbosacral spine disability. The examiner must provide a complete rationale for any opinion expressed. 4. After completion of the above, review the expanded record, including the evidence entered since the supplemental statement of the case, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).