Citation Nr: 0814786 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-01 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for depression, secondary to service-connected disability of L4-L5 herniated nucleus pulposus with clinical bilateral L4, left S1 lumbar radiculopathy (back disability). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from May 1980 to May 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the veteran's claim for service connection for depression secondary to a back disability. The appeal is REMANDED to the RO via the Appeals Management Center, in Washington, DC. VA will notify the appellant if further action is required. REMAND A December 2005 VA examiner found that, based on the veteran's history, records, and evaluations, depression was not related to a back disorder. However, the examiner did not offer any explanation as to why the history, records, and evaluations supported his conclusion. The examiner also failed to address a June 2000 opinion from the veteran's treating VA provider that the veteran's depression is secondary to a severe back disability. A new examination is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). The Board also notes that the veteran submitted notes from Dr. Ibzan Perez Munoz dated May 2005 and June 2005 which may be favorable to the veteran's claim. However, these records are illegible and the translated transcripts are therefore incomplete. The veteran should be afforded the opportunity to submit legible copies of these records. The veteran has not yet been provided with notice regarding the effective date and disability evaluations available when service connection is established for any claimed disability as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the case is REMANDED for the following action: 1. Additional Veterans Claims Assistance Act of 2000 notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must be provided to the veteran. In particular, the notice should advise the veteran that the May 2005 and June 2005 records of Dr. Perez Munoz are illegible and that he should submit legible copies of these records. The notice should include an explanation as to the information or evidence needed to determine a disability rating and effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Inform the veteran that the notes he submitted from Dr. Ibzan Perez Munoz dated May 2005 and June 2005 which were illegible. Provide the veteran an opportunity to submit legible copies of these records 3. When the above development is completed and any available evidence identified by the veteran is obtained, the entire claims file must be made available to a VA examiner, and a VA psychiatric examination should be scheduled. Pertinent documents should be reviewed. The examiner should conduct a complete history and physical. The examiner should provide an opinion as to whether the veteran's depression is at least as likely as not related to his service-connected back disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The examiner should explain his reasoning and discuss the medical evidence in the file, 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2007). _________________________________________________ MARJORIE A. AUER 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) (2007).