Citation Nr: 1427422 Decision Date: 06/17/14 Archive Date: 06/26/14 DOCKET NO. 08-19 652A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression, to include as secondary to a service-connected disability. 2. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease, to include cervical dystonia/tortiocollis of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty from December 1971 to December 1974 and from February 1975 to May 1975. This matter is on appeal from a January 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. However, jurisdiction of the appeal is currently with the RO in Montgomery, Alabama. This case was before the Board in August 2011 when it was, in pertinent part, remanded for additional development. The Veteran testified before the undersigned Veterans Law Judge in April 2011. A transcript of the hearing is of record. In an August 2012 rating decision, the agency of original jurisdiction (AOJ) granted service connection for degenerative disc disease, to include cervical dystonia/tortiocollis of the cervical spine. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file include a March 2014 Informal Hearing Presentation. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on his part is required. REMAND Acquired Psychiatric Disorder Although the Veteran underwent a VA psychiatric examination in October 2011, the examination report is inadequate for adjudication purposes. Specifically, the VA examiner stated that the Veteran does not now have a psychiatric disorder; furthermore, he has never been diagnosed with a psychiatric disorder. However, upon review of the record, the Board notes that VA outpatient treatment records shows that the Veteran was diagnosed with and treated for depression and anxiety in 2006. Private treatment records from Dr. DSE show that he was prescribed Cymbalta beginning in June 2006. While the VA examiner noted these treatment records as a part of the Veteran's medical history, she failed to explain why these records would not be evidence of a diagnosis, nor did she provide an etiology opinion as to the diagnosed disability. The Veteran even reports ongoing treatment through the Memphis VA Medical Center (VAMC). See Veteran's statement dated November 2013. The United States Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A remand for a clarifying medical opinion is necessary. Further, while on Remand, and as a result of his report of receiving psychiatric treatment through the Memphis VAMC, to include a 12-hour period hospitalization for anxiety-related symptoms, the Veteran's current VA treatment records should be obtained. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Cervical Spine One of the matters the Board must address is which issue or issues are properly before the Board. An appeal to the Board is initiated by a Notice of Disagreement (NOD) and completed by a substantive appeal after an SOC (Statement of the Case) is furnished. In essence, the following sequence is required: There must be a decision by the AOJ; the claimant must timely express disagreement with the decision; VA must respond by issuing an SOC; and finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202 and 20.203. An August 2012 rating decision granted service connection and a 20 percent rating for degenerative disc disease, to include cervical dystonia/tortiocollis of the cervical spine. The Veteran was notified of this rating decision in a November 24, 2012 letter. The Veteran submitted a timely NOD (postmarked November 23, 2013, see 38 C.F.R. § 20.305) to the rating assigned. However, the record before the Board does not show that the Veteran has been provided an SOC in response to the NOD. Because the NOD placed the issue in appellate status, the matter must be remanded for the originating agency to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC to the Veteran and his representative addressing the issue of entitlement to an initial rating in excess of 20 percent for degenerative disc disease, to include cervical dystonia/tortiocollis of the cervical spine. Also inform them of the requirements to perfect an appeal with respect to the new issue. If the appeal is timely perfected, ensure that all indicated development is completed before the case is returned to the Board. 2. Obtain all outstanding VA treatment records reflecting psychiatric treatment since May 2008. A specific request should be made for records from the Memphis VAMC. 3. Next, return the Veteran's claims file to the VA psychologist who provided the October 2011 opinion for an addendum opinion. If that psychologist is not available, any VA psychiatrist or psychologist can provide the opinion. The claims file must be made available for review and the addendum report should indicate that it was reviewed. The following questions should be answered: a. Identify all of the Veteran's psychiatric disabilities that have been diagnosed since December 2005. In this regard, include a discussion of the depression and anxiety noted on VA and private treatment records in 2006 as well as any diagnosis made in the records received from the Memphis VAMC. If the examiner does not believe that the evidence supports a diagnosis of a psychiatric at any time during the appeal period, such should be stated and explained. b. Is it is at least as likely as not (50 percent probability or more) that any psychiatric disability diagnosed since December 2005 was incurred in or aggravated by her military service? c. Is it is at least as likely as not (50 percent probability or more) that any psychiatric disability diagnosed since December 2005 was at least as likely as not (a 50 percent probability or greater) caused by a service-connected disability or aggravated a service connected disability? The examiner should address the contention that the Veteran's assertion that the pain from his service-connected disabilities has led to his claimed psychiatric disorder. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Rationale for all requested opinions shall be provided. If an opinion cannot be provided without resorting to mere speculation, a complete explanation stating why this is so must be provided. In so doing, VA psychologist shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Then re-adjudicate the claim for entitlement to service connection for an acquired psychiatric disorder, to include on a secondary basis. If the claim remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). By this remand the Board intimates no opinion as to any final outcome warranted. This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MICHAEL A. HERMAN 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) (2013).