Citation Nr: 21011510 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-03 805 DATE: March 2, 2021 REMANDED Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbosacral strain, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, depression, and dysthymia, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from July 1972 to July 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Board notes that the Veteran’s representative at that time was not present at the hearing; however, the Veteran indicated on the record that he wished to proceed with the hearing without his representative. A transcript of the hearing has been associated with the Veteran’s electronic claims file. In July 2018, the Board, in pertinent part, remanded the issues on appeal for further development. The issues have returned to the Board for further appellate consideration. In December 2019, the Veteran revoked representation by The American Legion. He is currently unrepresented. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Initially, a December 2020 VA letter to the United States Office of Personnel Management indicates that the Veteran was awarded federal disability retirement benefits. Thus, VA attempted to obtain the Veteran’s federal disability retirement records in December 2020. It does not appear that these records have been associated with the claims file. A remand is required for further development in obtaining these outstanding and potentially relevant records. 1. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbosacral strain, is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2018 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA examination to determine the nature and etiology of his claimed left lower extremity radiculopathy. Specifically, the examiner was instructed to address whether the Veteran’s claimed disability is related to his service-connected back disability, or in the alternative, is directly related to service. In July 2020, the Veteran was afforded a VA back examination. The examiner provided a diagnosis of radiculopathy of the bilateral lower extremities; however, the examiner did not provide an etiology opinion as to this condition. In August 2020, a VA addendum opinion was obtained, in which another examiner opined that the Veteran’s left lower extremity radiculopathy was not caused by his service-connected lumbosacral strain. The examiner indicated that bilateral lower extremity radiculopathy is associated with chronic degenerative changes of the lumbosacral spine, which is known to result in nerve root compression causing radiculopathy, and it is not associated with lumbosacral strain involving overused and sore lower back muscles only. However, the August 2020 examiner did not address whether the Veteran’s left lower extremity radiculopathy was directly related to service. Thus, to ensure compliance with the July 2018 remand directives, the Board finds that a remand to obtain a VA addendum opinion addressing direct service connection is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, depression, and dysthymia, is remanded. Pursuant to the July 2018 remand instructions, the Veteran was afforded a VA psychiatric examination in September 2020. The Board finds that the opinion with regard to the Veteran’s claimed acquired psychiatric disorder associated with this VA examination is inadequate. On VA examination in September 2020, the examiner noted that the Veteran did not have a diagnosis of PTSD that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The examiner further noted that the Veteran does not have a mental disorder that conforms with the DSM-5 criteria. However, as indicated by the Board in July 2018, VA treatment records dated September 2005 and August 2006 show a diagnosis for depression NOS (not otherwise specified). In addition, VA treatment records dated May 2007 and September 2007 show a diagnosis of dysthymia. Furthermore, a September 2016 private treatment record shows a diagnosis of major depressive disorder. Thus, although the Veteran was not found to have these psychiatric disorders at the time of the September 2020 VA examination, the Veteran sought treatment for these psychiatric disorders during the claim period. As such, the Veteran has been shown to have depression NOS, dysthymia, and major depressive disorder during the claim period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the existence of a current disability may be satisfied when a claimant has a disability at the time a claim for compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim). Therefore, there is a psychiatric diagnosis shown during the claim period. The Board concludes that a remand is necessary, because despite the lack of finding of a psychiatric disorder on the September 2020 VA examination, there are various psychiatric diagnoses during the claim period. See id. Thus, a new VA opinion is warranted. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Obtain the Veteran’s federal disability retirement records from the United States Office of Personnel Management. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding records, return the claims file to the examiner who provided the August 2020 VA opinion as to the Veteran’s left lower extremity radiculopathy. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the August 2020 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether any diagnosed neurological disorder of the left lower extremity during the claim period is at least as likely as not related to an in-service injury, event, or disease. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Then, return the claims file to the examiner who performed the September 2020 VA psychiatric examination. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the September 2020 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA psychiatric examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. Following a review of the entire record, the examiner is requested to provide the following opinions: Is it at least as likely as not that the Veteran had depression at any point in time during the claim period which is causally related to an in-service injury, event, or disease? Is it at least as likely as not that the Veteran had dysthymia at any point in time during the claim period which is causally related to an in-service injury, event, or disease? Is it at least as likely as not that the Veteran had major depressive disorder at any point in time during the claim period which is causally related to an in-service injury, event, or disease? A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 5. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate 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.