Citation Nr: 1002155 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 08-13 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a psychiatric disorder, to include as due to Methicillin-resistent Staphylococcus aureus. 3. Entitlement to service connection for Methicillin- resistant Staphylococcus aureus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2004 through June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has statutory and regulatory duties to notify and to assist the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. After a thorough review of the Veteran's claims file, the Board finds that remand is required because VA has not yet met its duties under the VCAA with regard to the Veteran's claims for entitlement to service connection for bilateral hearing loss, Methicillin-resistant Staphylococcus aureus (MRSA), and a psychiatric disorder. I. Bilateral Hearing Loss A review of the Veteran's claims file reveals that there are additional private medical treatment records identified by the record pertaining to the Veteran's claim for entitlement to service connection for bilateral hearing loss which have not been associated with the Veteran's claims file. Specifically, during her October 2009 hearing before the Board, the Veteran reported that she was treated at Phillips Memorial Hospital and Good Samaritan Hospital for a hand injury incurred as a result of her impaired hearing. Although the Veteran indicated that she would obtain and submit the private medical treatment records, those records are not associated with the claims file and there is no indication that the identified records are unavailable. Thus, the RO should request all of the identified private medical treatment records. II. MRSA The Veteran contends that she developed MRSA during active duty service, and that she has had recurrences of MRSA since separation from active duty service. Specifically, during her October 2009 hearing before the Board, the Veteran testified that she has had repeated bouts of MRSA since service and that the bouts consist of small sores in the groin area which hurt, itch, and are aggravated by heat. She noted that she has not sought medical treatment for her MRSA since service discharge because, prior to service discharge, she was provided with a prescription soap to use when outbreaks occur in order to prevent them from developing into boils. She indicated that she has self-treated her MRSA with the prescription soap since service discharge. Initially, the Board observes that the medical evidence of record does not reflect a diagnosis of MRSA after service discharge. However, the Veteran has reported that she has continued to have symptoms of MRSA since service discharge. Although the Veteran was provided with a VA examination in November 2007 which did not indicate an active MRSA infection, based on the Veteran's testimony that she continues to have symptoms of MRSA, a VA examination should be conducted to determine whether the symptoms that the Veteran has been experiencing since service discharge are MRSA and whether a definitive diagnosis of MRSA is warranted. As there is a reported history of recurrence and remission of the Veteran's MRSA, the RO should attempt to schedule the examination during an active stage of the infection. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). If the VA examiner concludes that a diagnosis of MRSA is indicated, the examiner should also provide an opinion as to whether the Veteran's MRSA was caused or aggravated by active duty service. III. Psychiatric Disorder With regard to the Veteran's claim for entitlement to service connection for a psychiatric disorder, the Board finds that this issue is inextricably intertwined with the Veteran's claim for entitlement to service connection for MRSA. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). This is so because the Veteran contends that her current psychiatric disorder was aggravated by her MRSA. Thus, in order to determine whether the Veteran's current psychiatric disorder was aggravated by a service-connected disorder, it must first be determined whether service connection for MRSA is warranted. Accordingly, these issues must be adjudicated together. Accordingly, the case is remanded for the following action: 1. After obtaining the appropriate authorizations, the RO must contact Phillips Memorial Hospital and Good Samaritan Hospital and request that they each provide all clinical records of their treatment of the Veteran. 2. All attempts to secure the evidence listed above must be documented in the claims file. If, after making reasonable efforts to obtain named records, such records cannot be obtained, the Veteran must be notified and (a) the specific records that cannot be obtained must be identified; (b) the efforts that were made to obtain those records must be explained; and (c) any further action to be taken by VA with respect to the claims must be noted. The Veteran and her representative must then be given an opportunity to respond. 3. The Veteran must be afforded the appropriate VA examination to determine whether a diagnosis of MRSA is warranted, and if so, the etiology of the MRSA. The examination must be scheduled during a flare-up of the Veteran's reported MRSA symptoms. The examining facility must be fully informed of the unusual requirements in this case and communicate with the Veteran as necessary to maximize the likelihood of performing the examination during a flare-up of the claimed condition. Appropriate instructions must be provided to the Veteran in this regard. The claims file must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and postservice treatment records and after conducting an interview and physical examination of the Veteran, the VA examiner must state whether the Veteran currently has MRSA, and if so, whether her MRSA is related to her active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The report prepared must be typed. 4. The RO must notify the Veteran that it is her responsibility to report for the scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any of the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2009).