Citation Nr: 1038121 Decision Date: 10/08/10 Archive Date: 10/15/10 DOCKET NO. 09-16 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include depression, claimed as secondary to service- connected status post left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied the benefit sought. Although the RO had adjudicated the issue of entitlement to service connection for a psychiatric disorder identified by the RO as depression, a claim for a specific psychiatric disability encompasses a claim in general for any psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection specifically for a psychiatric disability of PTSD encompass claims for service connection for all psychiatric disabilities; an appellant generally is not competent to diagnose his mental condition, he is only competent to identify and explain the symptoms that he observes and experiences). In May 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO (Travel Board hearing). A copy of this transcript is associated with the record. 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 Before addressing the merits of the issue currently on appeal, the Board finds that additional development of the evidence is required. The Veteran is claiming service connection for an acquired psychiatric disorder of depression, which he claims to be secondary to his service-connected status post left ankle injury. At the May 2010 Travel Board hearing the Veteran testified in essence that he developed a depression disorder due to both the pain from the left ankle disability, and the loss of his job and resulting homelessness because of the left ankle disability. At the May 2010 Travel Board hearing the Veteran testified that he had received treatment for his depression since about 2006. At that hearing the Veteran also testified that he was receiving Social Security Administration (SSA) benefits for the previous about two years based on the depression disability. Neither the SSA decision nor the records on which it was based are contained in the claims file. The Board finds that these documents may be relevant to the Veteran's service connection claim. VA's duty to assist includes obtaining records of the Veteran's relevant VA medical treatment and from other agencies. 38 U.S.C.A. §§ 5103A(c)(2) and 5103A(c)(3); 38 C.F.R. §§ 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992). Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits, and VA has a duty to assist the Veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Thus, a remand is warranted to obtain these records. VA and private psychiatric treatment records beginning in 2002 show diagnoses of different acquired psychiatric disorders, including posttraumatic stress disorder (PTSD); major depressive disorder; and history of polysubstance abuse (opioid, cocaine). These records include assessments and comments showing opinions of various etiological bases for the diagnoses, including associated with post-service stressors, and with pain from the service-connected left ankle disorder. A September 2008 statement from a VA licensed psychologist shows that the psychologist provided a statement at the Veteran's request. The psychologist stated that the Veteran had a chronic pain condition, which had been documented by medical providers. She also stated generally, that there is an interaction between chronic pain and depression, documented by the scientific literature, such that depression can exacerbate pain, and in turn, chronic unremitting pain perpetuates feelings of depression and hopelessness. Review of a November 2008 VA examination of the Veteran's service-connected status post left ankle injury shows that the Veteran reported that in about 2002, he developed insidious onset of increasing pain along the left lateral aspect of the left ankle to the point that he was experiencing moderate to severe pain, weakness, stiffness, feeling of giving away and inability to even lightly touch the lateral aspect of the left ankle. The condition was constant. Review of the claims file shows a number of other physical conditions for which service connection is not in effect. In a May 2010 statement, Stacy Vasquez, LCSW, stated that the Veteran had a diagnosis of major depression; that the Veteran had significant grief/loss issues, including depression over the loss of his career, lifestyle, and his inability to work; and that he deals with severe chronic pain with his left ankle on a daily basis. She stated that the pain made it difficult for the Veteran to go out into the community and therefore caused him to isolate, which furthered his depression; and that he had sleep deprivation issues, also facilitated by the pain. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Based on the foregoing, the RO should arrange for a new VA examination in order to obtain an opinion on whether there is an acquired psychiatric disorder that is likely to be proximately due to, or the result of, the Veteran's service-connected status post left ankle disability; or etiologically related to service otherwise. Fulfillment of VA's statutory duty to assist the appellant includes providing an additional VA examination by a specialist when indicated, conducting a thorough and contemporaneous medical examination, and providing a medical opinion, which takes into account the records of prior medical treatment. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Such examination and opinion would be instructive with regard to the appropriate disposition of the claim under appellate review. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993); Littke v. Derwinski, 1 Vet. App. 90 (1990). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VA notice letter complying with the decision reached in Allen v. Brown, 7 Vet. App. 439, 448 (1995). Specifically, this letter should advise him about the elements to establish secondary service connection pursuant to the provisions of 38 C.F.R. § 3.310 (2009). 2. Request from the SSA any records associated with the Veteran's disability claim. Request copies of the disability determination and all medical records considered. If no records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 3. The AOJ should contact the Veteran and request that he provide information as to the dates of any treatment received after service including any dated after February 2010 (date of last VA treatment record) for psychiatric disorder. Request the Veteran to furnish signed authorizations for the release to the VA of any private medical records in connection with each non-VA source he identifies. Copies of the medical records (not already in the claims folder) from all sources should be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, inform the Veteran of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R § 3.159 (2009). 4. Schedule the Veteran for VA examination by a psychiatrist to determine the nature and etiology of any acquired psychiatric disorder. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. The rationale for any opinion expressed should be included in the examination report. If the examiner determines that it is not feasible to respond to any of the inquiries below, the examiner should explain why it is not feasible to respond. After review of the medical evidence on file of treatment for psychiatric symptomatology, as outlined above, and performing such examination/studies deemed necessary, the examiner should identify any acquired psychiatric disorder present. For any psychiatric disorder identified, provide a medical opinion as to whether there is a probability of 50 percent or greater (is at least as likely as not) that: (a) in the case of an acquired psychiatric disability-it began or was permanently worsened during active service, and/or was the result of an inservice injury or disease; (b) or was caused by or aggravated by the Veteran's service-connected left ankle disability; (c) or in the specific case of a psychosis-became manifested to a compensable degree within one year of separation from active duty, or otherwise is shown to be etiologically related to service. The examiner should comment on the evidentiary basis for any etiological opinion relating any current acquired psychiatric disability to service. If PTSD is diagnosed, then the examiner should ask the Veteran to identify and distinguish any inservice and post-service stressor the Veteran associates with his PTSD symptoms. 5. After the requested examination has been completed, the AOJ must ensure that all instructions ordered here are undertaken. If not, take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). Also the AOJ should conduct any additional development deemed necessary. 6. Then, conduct any additional development deemed appropriate by the AOJ. If the ordered mental disorders examination includes a diagnosis of PTSD, and if the Veteran has attributed the disorder to an inservice stressor, then conduct any additional development deemed appropriate by the AOJ that has not already been completed, as implied by 38 C.F.R. § 3.304(f) (2009). 7. Thereafter, readjudicate the claim under review in light of any additional evidence received after the May 2010 statement of the case. If the benefit sought is not granted, issue the Veteran and his representative a supplemental statement of the case on that claim, which reflects consideration of all additional evidence received and fully sets forth the controlling law and regulations pertinent to the issue on appeal, to include consideration of 38 C.F.R. § 3.310 when adjudicating the claim. Allow an appropriate period of time for the Veteran and his representative to respond. Thereafter, return the case to the Board for further appellate consideration. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2009). 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. 2009). _________________________________________________ A. BRYANT 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).