Citation Nr: 0815168 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 92-25 174 ) 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 a psychiatric disorder claimed as secondary to a service-connected lumbar spine disorder. REPRESENTATION Appellant represented by: Daniel Krasnegor, attorney WITNESSES AT HEARING ON APPEAL Appellant and Jose Juarbe, M.D. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from May 1978 to October 1982. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) San Juan Regional Office (RO). In January 2001, a hearing was held at the RO before the undersigned Veterans Law Judge. The Board denied the claim in a decision of May 2002. However, the decision was vacated by the United States Court of Appeals for Veterans Claims (Court) pursuant to a Joint Motion. The Board subsequently remanded the case for additional action in February 2004. The case has now been returned to the Board for further appellate review. 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 contends that he developed or aggravated a psychiatric disorder as a result of his service-connected disabilities, particularly his service-connected back disorder and associated disabilities. Service connection may be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a). This regulation has been interpreted by the Court to allow service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service- connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). Recently, the regulation was revised to incorporate the Court's ruling. See 71 FR 52747, Sept. 7, 2006. The regulation now provides as follows: (a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. In the Joint Motion dated in June 2003, the parties stated that the veteran had not been provided adequate notice pursuant to the Veterans Claims Assistance Act of 2000. In the Joint Motion, it was noted that 38 U.S.C.A. § 5103(a) required VA to inform the claimant of information or evidence necessary to substantiate the claim, as well as which evidence VA would seek to provide and which evidence the claimant was to provide. It was further stated that BVA failure to enforce compliance with that requirement was remandable error. For that reason, the Joint Motion requested that the Board's decision be vacated and the case be remanded for the purpose of providing proper notice. The Court granted that motion in June 2003. Subsequently, in a remand dated in February 2004, the Board instructed the RO to send the veteran "a letter specifying what information and evidence is necessary to substantiate his claim for service connection for a psychiatric condition as secondary to a service-connected lumbar spine disability and which portion of any such information or evidence he must provide and which portion the VA must provide." The RO subsequently sent the veteran a VCAA notification letter in August 2004. Unfortunately, the letter only contained information regarding what evidence is necessary to establish direct service connection for a disorder which is incurred in service. No information was provided regarding what information and evidence is required to establish secondary service connection. The Board notes that a different attachment has been created to address such secondary claims. See Veterans Benefits Administration Fast Letter 04-17 (August 12, 2004). That attachment has been reviewed by the Office of General Counsel, the Board of Veterans' Appeals, and the Compensation and Pension Service, and these parties have jointly concurred on the specific language contained in the attachment. It has been agreed that the language is legally sufficient and consistent with Department policy. The notice with all its enclosures must be of record to document the VA's compliance with its statutory Title 38 § 5103(a) VCAA notice responsibility. Accordingly, the case is REMANDED for the following action: 1. The RO should provide a VCAA notice to the appellant which includes the above referenced attachment applicable to claims for secondary service connection. The veteran should then be afforded an appropriate period of time to respond. 2. The RO should review any additional evidence which is added to the claims file and determine whether the benefits sought on appeal may now be granted. If the benefits sought on appeal remain denied, the appellant and representative should be furnished a SSOC and given the opportunity to respond thereto. 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).