Citation Nr: 1043725 Decision Date: 11/22/10 Archive Date: 12/01/10 DOCKET NO. 06-26 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for psychiatric disability claimed as a major depressive disorder, to include as secondary to service-connected pansinusitis. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected pansinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in April 2004 and April 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims that his currently diagnosed depression is caused by or aggravated by his service-connected chronic pansinusitis. In February 2004, a VA for-fee examiner opined that he did not consider the Veteran's sinusitis a significant factor that aggravated or generated his depressive disorder. However, the examiner provided no rationale for this opinion, such that it may be afforded only very little or no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (holding that review of a claims file by a VA examiner, without more, does not automatically render the examiner's opinion competent or persuasive; and that the lack of a reasoned medical explanation is a significant factor in assessing the value of a medical opinion). A record of VA psychiatric treatment in July 2004 includes a diagnosis by a physician of rule out mood disorder due to general medical condition, including hypertension and chronic headaches from sinusitis. Further, in April 2005 a VA treating nurse- practitioner wrote that it was quite possible that the chronicity of the Veteran's sinus problems with associated headaches has resulted in his depression. As there is some evidence to indicate that the Veteran's depression may be caused or aggravated by his service-connected pansinusitis, but there is insufficient information to make a decision on Veteran's claim, a new VA examination and opinion is required. See 38 U.S.C.A. § 5103A(d). The Veteran further contends that due to his depression, which he contends is caused or aggravated by his service-connected pansinusitis, he has in the past been prescribed a psychiatric medication by VA, the name of which he cannot recall, that caused his hypertension. See VA Form 9 received in May 2007. The Veteran also alleges that hypertension is caused or aggravated by his service-connected chronic pansinusitis or medications he receives for pansinusitis. VA treatment records reveal that such medications include pseudoephedrine (Sudafed), Flonase, and Claritin, as well as intermittent courses of antibiotics. The Board does not have the medical expertise to determine whether these medications may cause or aggravate hypertension. Accordingly, a VA examination and opinion is required in order to assist the Board in adjudication of this claim. See 38 U.S.C.A. § 5103A(d). The RO must seek to obtain all available relevant records of VA and private treatment for hypertension, sinusitis, and depression, from the time of his discharge from active service forward that have not been obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(a)-(c). While the RO has attempted to obtain records of treatment at the VA Medical Center at East Orange for the period from 1983 to 2005, it appears to have obtained what may be an incomplete set of the records. Most recently, in November 2005, the VAMC at East Orange informed the RO that it did not have records for the time frame the Veteran had provided. In his May 2007 VA Form 9, the Veteran indicated that it would be the East Orange VAMC records of treatment that would indicate his prior psychiatric medication that he contends caused his hypertension. Additionally, in October 2001, the Veteran contacted the RO, requesting a copy of his DD Form 214, for the purpose of applying for Social Security Administration (SSA) benefits. Particularly because an SSA disability file may contain copies of VA records of treatment that the Veteran contends are relevant to his claim, any such records in the possession of SSA must be sought. See Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010); Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002); Voerth v. West, 13 Vet. App. 117, 121 (1999); Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated his pansinusitis, depression, and hypertension during the period from October 1968 to the present. (a) After obtaining any appropriate authorizations for release of medical information, the RO/AMC must obtain records from each health care provider the Veteran identifies. (b) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. (c) Records of a Federal department or agency must be sought until it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. 38 U.S.C.A. § 5103A(b)(3). 2. Contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. (See correspondence from Veteran received in October 2001.) 3. Once all available medical records have been received, arrange for a VA mental health examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has current psychiatric disability that had its onset during active service or was related to any incident of service, and to determine whether the Veteran has current psychiatric disability that is caused or aggravated (a permanent worsening as opposed to temporary flare-ups) by service-connected pansinusitis. The following considerations will govern the examinations: (a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. The records reviewed must include the service treatment records and post- service records of treatment for sinusitis and psychiatric disability. (b) The examiner will: (1) Provide a diagnosis for each psychiatric disorder found upon examination. (2) For each psychiatric disorder found, provide a medical opinion as to whether that condition is caused or aggravated by service-connected chronic pansinusitis. (c) The examiner is requested to provide a complete rationale for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. (d) If an examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. (e) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination--to determine whether the Veteran has current psychiatric disability that had its onset during active service or was related to any incident of service, and to determine whether the Veteran has current psychiatric disability that is caused or aggravated (a permanent worsening as opposed to temporary flare-ups) by service-connected pansinusitis. 4. Additionally, once all available medical records have been received, schedule the Veteran for a VA medical examination, to be governed by the following considerations: (a) The examination must be scheduled with an appropriate clinician and for the purpose of determining the following: (i) Whether the Veteran has current hypertension that had its onset during active service or within one year of service, or is related to any incident of service; (ii) Whether the Veteran has current hypertension that is caused or aggravated (a permanent worsening as opposed to temporary flare-ups) by service-connected pansinusitis or any medication for pansinusitis, including pseudoephedrine (Sudafed), Flonase, and Claritin, as well as intermittent courses of antibiotics; and (iii) Whether the Veteran's hypertension has been caused or aggravated by psychiatric disability or any psychiatric medication he receives currently or has taken in the past. (b)The following considerations will govern the examination: (i) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. The records reviewed must include the service treatment records and post-service records of treatment for sinusitis, psychiatric disability, and hypertension. (c) The examiner is requested to provide a complete rationale for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. (d) If the examiner is unable to render any requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. (e) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. In so doing, the examiner must carefully review and address the purpose of the examination, as set forth in action paragraphs (3)(b)(i), (ii), and (iii), above. 5. Readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).