Citation Nr: 1102002 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 10-07 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for displacement of the intervertebral disc without myelopathy. 2. Entitlement to service connection for central canal stenosis, spondylosis, and osteochondritis of the lumbar spine. 3. Entitlement to service connection for a psychiatric disability (other than posttraumatic stress disorder), to include as secondary to service-connected lumbosacral strain with scoliosis. 4. Entitlement to a rating in excess of 20 percent for lumbosacral strain with scoliosis. REPRESENTATION Appellant represented by: Karl Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to October 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2010, the Veteran testified before the undersigned at a Travel Board hearing. The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In a February 1995 rating decision, service connection was denied for posttraumatic stress disorder (PTSD). The Board recognizes that when the claim was denied, that only PTSD as a disease process, the one diagnosed, was denied. The current claim for service connection for a psychiatric disability extends beyond PTSD, particularly since the current diagnosis is bipolar disorder, a separate disease process. Thus, this claim is being considered by VA on the merits and not on a new and material basis. The issue of whether new and material evidence has been presented to reopen a claim for service connection for PTSD was raised in July 2010 statement. THIS MATTER IS REFERRED TO THE RO FOR APPROPRIATE ACTION. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. At his hearing, the Veteran testified that he has been treated at the Murfreesboro VA facility and indicated that there were outstanding records. The Veteran has not submitted this evidence. When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990). These records should be obtained in compliance with VA's duty to assist. The Veteran also testified that he has applied for Social Security Administration (SSA) benefits. VA has a statutory duty to obtain these records. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). The Court has also held that VA has a duty to acquire both the SSA decision and the supporting medical records pertinent to a claim. See Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). These records should be obtained on remand. See also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Board notes that while the Veteran was afforded a VA spine examination in July 2009 and has been examined on an outpatient basis for psychiatric disability in which bipolar disorder was diagnosed (see VA medical records dated November 27, 2009), a medical opinion was not provided regarding the etiology of claimed spine and psychiatric disabilities. Because this case presents complex medical and unresolved factual questions and since the Board is precluded from reaching its own unsubstantiated medical conclusions, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Additional potentially relevant records have not been obtained. A summary of the Veteran's treatment from Ree Ann Cupp, D.C. is of record showing that she began treating the Veteran for his back in December 1994. On remand, her actual treatment records of the Veteran should be obtained. Review of the claims folder also shows that the Veteran injured his back in automobile accidents in April 1995 and August 1995 and again injured his back in June 2000. He reportedly had back surgery in September 2001. His complete treatment records related to these injuries and treatment should be obtained on remand, including from Our Lady of the Lake Regional Medical Center and from George Murphy, M.D. It also appears that the Veteran's complete VA treatment records have not been obtained. An April 1996 VA examination report indicates that he was being treated at the New Orleans VA Medical Center (VAMC) and underwent a bone scan on April 2, 1996. These records should be obtained on remand. The Veteran has reported that he was hospitalized for psychiatric treatment in June 1997 and May 2000. His complete records related to these hospitalizations should be obtained on remand. Finally, in December 2009 the RO denied entitlement to a rating in excess of 20 percent for lumbosacral strain with scoliosis. At his hearing before the Board in November 2010, the Veteran expressed disagreement as to the issue of entitlement to a higher rating for lumbosacral strain with scoliosis. As such, a statement of the case must be issued. See Manlincon v. West 12 Vet. App. 238 (1999). Accordingly, this matter is REMANDED for the following actions: 1. Make arrangements to obtain copies of all treatment records of the Veteran's treatment at the Murfreesboro and Birmingham VA treatment facilities, dated from November 2009 forward. 2. Make arrangements to obtain copies of all treatment records of the Veteran's treatment at the New Orleans VA treatment facility, dated from October 1994 to January 2002, including, but not limited to, a copy of an April 2, 1996 bone scan. 3. Make arrangements to obtain copies of the Veteran's complete treatment records from Lee Ann Cupp, D.C., dated from December 1994 forward. Actual treatment records, as opposed to summaries, should be obtained. 4. Make arrangements to obtain copies of the Veteran's complete treatment records from Our Lady of the Lake Regional Medical Center and from George Murphy, M.D., dated from October 1994 to present. 5. Ask the Veteran to identify all private medical care providers (other than those identified above) that treated him for his back since his separation from service, including for his automobile accidents in April 1995 and August 1995, his back injury in June 2000, and his back surgery in September 2001. Obtain all records that he adequately identifies. 6. Ask the Veteran to identify all medical care providers that treated him for any psychiatric problems since his separation from service, including those related to his hospitalizations in June 1997 and May 2000. Obtain all records that he adequately identifies. 7. Obtain from SSA a copy of any decision regarding the Veteran's claim for Social Security disability benefits, as well as the medical records relied upon in that decision. 8. Thereafter, schedule the Veteran for VA orthopedic examination. All indicated tests, including X-rays if indicated, should be accomplished. The examiner should review the claims folder in conjunction with the examination. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that the Veteran's displacement of the intervertebral disc without myelopathy, central canal stenosis, spondylosis, and/or osteochondritis of the lumbar spine had their clinical onset during active service or are related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge and discuss the in-service complaints and findings related to the Veteran's back in 1991 and 1994, as well as the post-service injuries in April 1995, August 1995, and June 2000. (b) If the answer to the foregoing question is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that the Veteran's displacement of the intervertebral disc without myelopathy, central canal stenosis, spondylosis, and/or osteochondritis of the lumbar spine are proximately due to, or the result of, the service-connected lumbosacral strain with scoliosis. (c) If the answer to the foregoing question is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that the Veteran's displacement of the intervertebral disc without myelopathy, central canal stenosis, spondylosis, and/or osteochondritis of the lumbar spine are permanently aggravated by the Veteran's service-connected lumbosacral strain with scoliosis. If such aggravation is found present, the examiner should address the following medical issues: (1) The baseline manifestations of the Veteran's disability found present prior to aggravation; (2) The increased manifestations which, in the examiner's opinion, are proximately due to the service-connected lumbosacral strain with scoliosis based on medical considerations. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 9. Schedule the Veteran for VA psychiatric examination. All indicated tests should be accomplished. The examiner should review the claims folder in conjunction with the examination. The examiner should identify all current psychiatric disorders found to be present, i.e., bipolar disorder, depression, etc. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current psychiatric disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge and discuss the in-service psychiatric complaints and findings in 1992. (b) If the answer to the foregoing question is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current psychiatric disorder is proximately due to, or the result of, the service-connected lumbosacral strain with scoliosis. (c) If the answer to the foregoing question is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current psychiatric disorder is permanently aggravated by the Veteran's service-connected lumbosacral strain with scoliosis. If such aggravation is found present, the examiner should address the following medical issues: (1) The baseline manifestations of the Veteran's psychiatric disability found present prior to aggravation; (2) The increased manifestations which, in the examiner's opinion, are proximately due to the service-connected lumbosacral strain with scoliosis based on medical considerations. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 10. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. 11. Then, readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 12. Finally, the Veteran should be sent a statement of the case as to the issue of entitlement to a higher rating for lumbosacral strain with scoliosis. If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. 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 2002 & Supp. 2010). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2010), 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) (2010).