Citation Nr: 20004725 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 13-14 877 DATE: January 21, 2020 REMANDED The claim of entitlement to service connection for cervical spine disc bulging, C3-4, (also claimed as trapezius muscle pain and limited range of motion in the neck) is remanded. The claim of entitlement to service connection for a left arm disability, manifested by pain and tingling, including as secondary to cervical spine disc bulging, C3-4, is remand. The claim of entitlement to increased ratings for panic disorder with generalized anxiety disorder, currently rated 70 percent disabling prior to April 22, 2009, and 30 percent disabling from that date, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 1990 to April 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision by the Pittsburgh, Pennsylvania Regional Office/Agency of Original Jurisdiction (RO/AOJ) of the Department of Veterans Affairs (VA) which, in pertinent part, found that new and material evidence had not been received to reopen the claim for service connection for a cervical spine disability, denied service connection for left arm pain and tingling, and denied a rating in excess of 30 percent for panic disorder with generalized anxiety disorder. In October 2014, a Board hearing was held before the undersigned; a transcript of the hearing is in the record. An April 2015 Board decision reopened the claim of service connection for a cervical spine disorder and remanded the claims of service connection for a cervical spine disability (on de novo review) and left arm pain and tingling as well as the claim for an increased rating for panic disorder with generalized anxiety disorder for additional development. In July 2018, the Board granted a 70 percent rating for the Veteran’s panic disorder with generalized anxiety disorder for the period prior to April 22, 2009. The Board’s February 2018 decision also denied the appeal with regard to the Veteran’s claims of entitlement to service connection for a cervical spine disability and for a left arm disability. The Board’s February 2018 decision furthermore denied the appeal to the extent that the Veteran sought further increases in the ratings for panic disorder with generalized anxiety disorder. The Veteran appealed the Board’s July 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the parties to the appeal (the Veteran, through his attorney, and a representative from VA General Counsel) filed a Joint Motion for Partial Remand of the Board’s decision (Joint Motion). The parties agreed that the Board’s decision should be vacated and remanded insofar as it had “denied entitlement to (1) a rating for panic disorder with generalized anxiety disorder (GAD) in excess of 70% prior to April 22, 2009, and in excess of 30% thereafter, (2) service connection for cervical spine disc bulging, C3-4; and (3) service connection for a left arm disability, manifested by pain and tingling....” The Court granted the Joint Motion in July 2019. The Joint Motion made expressly clear that it did not seek to disturb that portion of the decision on appeal that granted an increased rating. In June 2017, VA certified five additional issues to the Board (service connection for radiculopathy of the left and right lower extremities; an increased rating for status post right L1-L2 discectomy, degenerative disc disease T12-L1 and earlier effective dates for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and Dependents Educational Assistance (DEA) under Chapter 35) that are part of a separate appeal stream. As the May 2017 substantive appeal (VA Form 9, Appeal to Board of Veterans’ Appeals) in connection with these claims shows that the Veteran has requested a Board hearing, the appeal is pending scheduling of the hearing and has not been incorporated into the current appeal stream. 1. The claim of entitlement to service connection for cervical spine disc bulging, C3-4, (also claimed as trapezius muscle pain and limited range of motion in the neck) is remanded. 2. The claim of entitlement to service connection for a left arm disability, manifested by pain and tingling, including as secondary to cervical spine disc bulging, C3-4, is remand. 3. The claim of entitlement to increased ratings for panic disorder with generalized anxiety disorder, currently rated 70 percent disabling prior to April 22, 2009, and 30 percent disabling from that date, is remanded. The Joint Motion explains that “[t]he parties agree that remand is required because the Board erred when it did not ensure VA complied with the April 2015 Board remand order.” See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand order by the Board or the Court imposes upon the Secretary a concomitant duty to ensure compliance with the terms of the remand). Specifically, the Joint Motion discusses: “In the April 2015 Board decision, the Board remanded the claims on appeal and instructed that Appellant’s complete (to the present) clinical records of any VA evaluations or treatment be obtained and included in the claims file (c-file). However, there was no attempt to obtain the outstanding VA treatment records on Appellant’s behalf.” The Joint Motion explains: “Therefore, upon remand, the Board must ensure that any outstanding VA treatment records are obtained and associated with Appellant’s c-file.” The Board shall accordingly remand this case to obtain the Veteran’s outstanding VA treatment records. The Joint Motion also finds that “the Board erred in failing to provide an adequate statement of reasons or bases for its findings that Appellant failed to provide good cause or any communication explaining his absence and/or failure to cooperate with examination scheduling.” The Joint Motion noted that “VA mailed an examination scheduling letter to Appellant at a slightly different address” than the Veteran’s known address of record at the time, with the discrepancy featuring the absence of an accent mark for a pertinent location in Spain. The Joint Motion instructed that “the Board shall address this discrepancy and determine whether additional examination notices should be sent to Appellant.” During the processing of this remand, the AOJ shall have the opportunity to send new examination notice to the Veteran for pertinent new VA examinations. The other findings of the Joint Motion concern the necessity of discussing identified evidence in the analysis of the rating issue on appeal. That matter shall be addressed when the rating issue is next addressed on the merits after the necessary development actions have been completed as directed by the necessary remand of this appeal at this time. The matters are REMANDED for the following action: 1. The AOJ should secure for the record copies of the complete updated (to the present) clinical records of any (and all) VA evaluations and/or treatment the Veteran has received for the disabilities at issue. 2. After the record is determined to be complete, the AOJ should arrange for an appropriate examination of the Veteran to determine the nature and likely etiology of his current cervical spine disability and left arm neurological disability. [Please note the record reflects that the Veteran resides in Spain for a portion of every year.] To ensure proper provision of notice to the Veteran regarding the examination, in accordance with the directives of the Court-endorsed June 2019 Joint Motion, the AOJ must ensure that examination notice is sent to the exact address of record for the Veteran, including with attention to accent marks on Spanish location names (a missing accent mark was the discrepancy of concern discussed in the June 2019 Joint Motion). 3. The examiner(s) must review the entire record, and based on such review and examination of the Veteran respond to the following: (a) Please identify (by diagnosis/ diagnoses) each cervical spine and left arm disability found. (b) Please identify the likely etiology of each diagnosed disability entity of the cervical spine. Specifically, is it at least as likely as not (a 50% or greater probability) that such was incurred in the Veteran’s active duty service, including the June 1991 incident when he landed on his tailbone? The opinion provider should consider and discuss as necessary the evidence of record, including the Veteran’s reports of neck pain in January 1994 service treatment records (with normal X-rays), acute onset neck pain in June 1994 (with normal X-rays); February 1998 report of neck pain with onset the previous month (X-rays showing early degenerative changes); August 2001 treatment record showing neck pain since 1998 motor vehicle accident; August 2009 opinion from Dr. Albalate; and October 2014 testimony reporting 1998 car accident was minor. (c) Please identify the likely etiology of each disability entity of the left arm that is diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is either related to service, or was caused or aggravated by a service-connected disability (to include a cervical spine disability if, and only if, the examiner finds it is at least as likely as not that the cervical spine disability is related to service)? The examiner(s) must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. 4. The AOJ should also arrange for the Veteran to be examined by an appropriate physician to ascertain the current severity of his psychiatric disability. [Please note the record reflects that the Veteran resides in Spain for a portion of every year.] The Veteran’s entire record should be reviewed by the examiner in connection with the examination. The examiner must include rationale with all opinions. To ensure proper provision of notice to the Veteran regarding the examination, in accordance with the directives of the Court-endorsed June 2019 Joint Motion, the AOJ must ensure that examination notice is sent to the exact address of record for the Veteran, including with attention to accent marks on Spanish location names (a missing accent mark was the discrepancy of concern discussed in the June 2019 Joint Motion). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.