Citation Nr: 21027458 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-36 953 DATE: May 5, 2021 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for left upper extremity radiculopathy, to include as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for pinguecula of both eyes and chronic allergic conjunctivitis of both eyes is remanded. Entitlement to service connection for a vision disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to higher initial ratings for intervertebral disc disease (IVDS) of the lumbar spine; lumbar spondylosis; status post lumbar laminectomy surgery residuals; paravertebral myositis, and mild lumbar flexion, rated as 10 percent disabling prior to September 30, 2019, and as 20 percent disabling since September 30, 2019, is remanded. Entitlement to an initial rating in excess of 20 percent for left L5 and S1 radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for residuals of left ankle gunshot injury, calcaneus degenerative changes, is remanded. Entitlement to a rating in excess of 10 percent for a painful residual scar associated with residuals of left ankle gunshot injury is remanded. Entitlement to a compensable rating for a residual scar associated with residuals of left ankle gunshot injury is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from February 1968 to February 1970. The Veteran is the recipient of multiple awards and decorations, including the of the Vietnam Cross of Gallantry with Palm, the Combat Infantry Badge, the Purple Heart, Vietnam Campaign Medal with 60 Device, and Vietnam Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2012 and December 2013 Rating Decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in December 2018, at which time they were remanded for additional development. The Board acknowledges that its December 2018 decision also remanded the issue of entitlement to service connection for right lower extremity radiculopathy, to include as secondary to the service-connected lumbar spine disability, for additional development. However, in an August 2020 Rating Decision, the RO granted entitlement to service connection for right lower extremity radiculopathy. As this constitutes a full grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. The Veteran seeks entitlement to service connection for a cervical spine disorder, right upper extremity radiculopathy, left upper extremity radiculopathy, pinguecula of both eyes and chronic allergic conjunctivitis of both eyes, a vision disorder, and an acquired psychiatric disorder; entitlement to higher disability ratings for IVDS of the lumbar spine; left lower extremity radiculopathy, residuals of left ankle gunshot injury (calcaneus degenerative changes), a painful residual scar associated with residuals of left ankle gunshot injury, and a residual scar associated with residuals of left ankle gunshot injury; as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development is necessary before these claims can be adjudicated on the merits. With respect to all claims, a review of the claims file suggests that the Veteran receives regular VA treatment through the VA Caribbean Healthcare System. However, it appears that complete VA treatment records were last associated with the claims file by VA in December 2013. Indeed, the December 2014 Statement of the Case indicated that it only reviewed VA treatment records from June 16, 2010, to December 5, 2013, while the August 2020 Supplemental Statement of the Case did not indicate that any VA treatment records were reviewed. Nonetheless, in November 2020, two discharge summaries (dated in October 2020 and November 2020) from the San Juan VA Medical Center in San Juan, Puerto Rico, were uploaded to the claims file. Additionally, a November 2020 "Medical Data Review" by a private physician referenced "San Juan VA Medical Center, Outpatient Treatment Records." In December 2020, the Veteran submitted VA treatment records from the VA Caribbean Healthcare System dated in May 2020, June 2020, July 2020, and November 2020. Later that month, a single December 2020 discharge summary from the San Juan VA Medical Center was uploaded to the claims file. Significantly, this discharge summary indicated that the Veteran had follow-up appointments with VA in December 2020 and April 2020. Based on the above, it is clear that there are still outstanding VA treatment records which have not been associated with the claims file. As such, on remand, all outstanding VA treatment records dated from December 2013 to the present should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). With respect to the claim of entitlement to service connection for a psychiatric disorder, the Board's December 2018 Remand directed that the Veteran be provided with a VA examination by an appropriate clinician to determine the etiology of any diagnosed acquired psychiatric disorder. Pursuant to the Board's Remand, he was provided with a VA Mental Disorders examination in October 2019, at which time the VA examiner concluded that there was no mental disorder diagnosis. Significantly, the only psychiatric symptom indicated by the October 2019 VA examiner was anxiety. The Veteran was provided with another VA Mental Disorders examination (via approved video telehealth) in August 2020, at which time another VA examiner also concluded that the Veteran currently did not meet diagnostic criteria for a mental health condition. This examiner noted that there was no relevant mental health history based on current examination and review of available medical records. However, in December 2020 correspondence, the Veteran indicated that he was a Vietnam combat Veteran and experienced anxiety, depression, flashbacks, impaired impulse control, abstract thinking, inability to establish and maintain effective relationships, forgetfulness, difficulty in adapting to stressful circumstances, and chronic sleep disorder with nightmares. He requested that he be provided with additional VA examinations. Along with this December 2020 correspondence, the Veteran submitted a November 2020 "Medical Data Review" in which private physician C. E. Mora Quesada, M.D., diagnosed the Veteran as having "major depression disease" as well as "memory disorder, NOS." Specifically, Dr. Mora Quesada indicated that the Veteran exhibited nervousness; anxiety; irritability; difficulty in adapting to stressful circumstances; inability to establish and maintain effective work and social relationships; disturbances of motivation and mood; depressed mood; little interest or pleasure in doing things; feeling down; feelings of hopelessness; isolation; episodes of crying; insomnia with nightmares; and flashbacks of his traumatic experiences during active duty. In addition, Dr. Mora Quesada indicated that the Veteran presented poor frustration tolerance, suspiciousness, memory loss, and poor concentration, and that he forgets recent events, dates, and family members' names. Lastly, Dr. Mora Quesada indicated that the Veteran participated in comprehensive psychiatric and psychological therapy with poor improvement. Similarly, on a November 2020 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, Dr. Mora Quesada diagnosed the Veteran as having "major depressive disorder." While the Veteran is competent to observe that he has experienced mental health complaints or symptoms, the diagnosis of a psychiatric disability is a medical question. Here, the Veteran and his private physician have both provided an extensive list of symptoms attributed to an acquired psychiatric disability. Moreover, his private physician has diagnosed him as having "major depressive disorder" as well as "memory disorder, NOS." On the October 2019 and August 2020 VA Mental Disorders examinations, the examiners did not acknowledge many of the psychiatric symptoms alleged by the Veteran merely months later. As such, it is unclear to the Board whether the Veteran did not report these symptoms at the time of his October 2019 and August 2020 VA examinations, or whether he reported them but they were not supported by the objective evidence of record. Regardless, the record now contains an extensive list of symptoms attributed by a private physician to diagnoses of major depressive disorder and memory disorder. Although this private physician offered an opinion that the Veteran's psychiatric disorders were "more probable than not" secondary to his military service performance, this opinion was not supported by a rationale sufficient to grant entitlement to service connection. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, on remand, an additional VA medical opinion should be obtained which considers the psychiatric symptoms and diagnoses articulated in the November 2020 "Medical Data Review" by Dr. Mora Quesada, as well as the December 2020 correspondence from the Veteran. Additionally, given the revelation by Dr. Mora Quesada that the Veteran participates in comprehensive psychiatric and psychological therapy, the Veteran should be asked to submit a fully completed VA Form 21-4142, Authorization and Consent to Release Information to VA, for each health care provider from whom he would like VA to obtain records, to include any healthcare providers involved in his psychiatric treatment. With respect to the claims of entitlement to increased ratings for his service-connected lumbar spine disability and left L5 and S1 radiculopathy, the Veteran was last provided with a VA examination with respect to these claims in September 2019, nearly two years ago. However, Dr. Mora Quesada's November 2020 "Medical Data Review" documented lumbar spine symptomatology that was more severe than the symptomatology documented at the time of the most recent September 2019 VA examination. In addition, Dr. Mora Quesada indicated that the Veteran was enrolled in physical medicine and rehabilitation (PM&R) programs with poor improvement of his lumbar symptomatology. As such, the Board finds that the Veteran should be provided with a new VA examination to determine whether his service-connected lumbar spine disability has undergone an increase in severity. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran). Finally, it does not appear that the Veteran's complete service personnel records have been associated with the claims file. As these records may be relevant to his claim of entitlement to service connection for an acquired psychiatric disorder, his complete service personnel records should be obtained and associated with the claims file on remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from the VA Caribbean Healthcare System, to include the San Juan VA Medical Center in San Juan, Puerto Rico, and all associated outpatient clinics since December 2013, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. Request that the Veteran submit a fully completed VA Form 21-4142, Authorization and Consent to Release Information to VA, for each health care provider from whom he would like VA to obtain records. Based on the Veteran's response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, then clearly document in the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. Undertake appropriate development to obtain the Veteran's complete service personnel records during his two years of active duty service. If any records sought are deemed unavailable, then document all efforts taken to obtain these records and the reason for their unavailability. 4. After the above development has been completed, obtain an addendum medical opinion regarding the nature and etiology of any diagnosed psychiatric disorder made at any time during the period on appeal, to include major depressive disorder and memory disorder. The Veteran's claims file must be made accessible to the designated professional for review. If the examiner determines that an additional examination of the Veteran is necessary, then one should be scheduled. Following the review of the claims file, the examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disorder made (whether through examination or review of post-service treatment records) at any time during the period on appeal, to include the major depressive disorder, generalized anxiety disorder, and memory disorder diagnoses rendered in November 2020 by Dr. Mora Quesada, had their onset in service or were otherwise directly related to service. If the examiner disagrees with the diagnoses of major depressive disorder, generalized anxiety disorder, and/or memory disorder established in the Veteran's treatment records under DSM-V criteria, then he or she should explain the difference in opinion using a detailed rationale. The examiner must also consider the Veteran's December 2020 lay statements regarding the nature and onset of his psychiatric symptoms, including as related to his service in Vietnam. The Board notes the Veteran is a recipient of the Vietnam Cross of Gallantry with Palm, the Combat Infantry Badge, the Purple Heart, Vietnam Campaign Medal with 60 Device, and Vietnam Service Medal. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, then he or she must provide an explanation for such rejection. A complete rationale should be provided for the opinions or conclusions expressed. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of all manifestations associated with his service-connected IVDS of the lumbar spine; lumbar spondylosis; status post lumbar laminectomy surgery residuals; paravertebral myositis, and mild lumbar flexion. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. All medically-indicated tests should be accomplished. After a review of the evidence, to include the November 2020 "Medical Data Review" and Examination for Housebound Status or Permanent Need for Regular Aid and Attendance by Dr. Mora Quesada, and with consideration of the Veteran's lay statements regarding his symptoms, the examiner should identify the extent of the Veteran's lumbar spine symptomatology in accordance with VA rating criteria, to include all manifestations and functional impairment. (Continued on the next page) In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, then he or she must provide an explanation for such rejection. A complete rationale should be provided for the opinions or conclusions expressed. 5. Readjudicate the claims on appeal considering the newly-submitted evidence added to the record since the August 2020 Supplemental Statement of the Case. If any benefit sought on appeal remains denied, then a Supplemental Statement of the Case must be provided to the Veteran and his representative. After an adequate opportunity to respond has been provided, then the appeal must be returned to the Board for appellate review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.