Citation Nr: 1300233 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 09-19 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder (claimed as nerves). 2. Entitlement to service connection for a disability manifested by nerve damage, specifically involving the right shoulder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision in which the RO denied the Veteran's claim for entitlement to service connection for nerve damage, nerves, residuals of a car accident. The Veteran filed a Notice of Disagreement (NOD) in June 2008. The RO issued a Statement of the Case (SOC) in April 2009. In May 2009, the Veteran filed her Substantive Appeal. Thus, the Veteran perfected a timely appeal. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2012. A transcript of that hearing has been reviewed and associated with the claims file. The Board notes that the issues on appeal have been recharacterized. Initially, as the issue was adjudicated by the RO, it was phrased as follows: entitlement to service connection for nerve damage and nerves claimed as due to an automobile accident. After speaking with the Veteran and her representative the VLJ decided to break the claim into two discreet issues, as listed on the title page. In April 2012, the Board remanded these matters to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The case has now been returned to the Board. As a final preliminary matter the Board has reviewed the Veteran's Virtual VA paperless claims processing system, in addition to the Veteran's paper claims file. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board has determined that further development of the Veteran's claims is warranted. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of a disorder, and (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id.; see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between the current disorder and the active military service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. With respect to the Veteran's claim of entitlement to service connection for a psychiatric disorder, the Veteran's June 1972 military entrance examination did not document any psychiatric disorders. During service, the Veteran was seen on several occasions from April 1973 to July 1973 by the Mental Health Clinic for depression and nervousness. In June 1973, the Veteran was afforded a psychiatric evaluation, and diagnosed with an "immature personality." A discharge was recommended based on this psychiatric evaluation, and the Veteran was subsequently discharged from the military in August 1973. The Veteran's July 1973 military separation examination did not document any psychiatric disorders. However, on the Veteran's July 1973 separation Report of Medical History, the Veteran checked the boxes to indicate that she currently experienced "depression or excessive worry" and "nervous trouble." Post-service, the Veteran was diagnosed by the VA Medical Center with an anxiety disorder and depressive disorder in February 2009. In her June 2008 NOD, the Veteran indicated that she has experienced a "mental nerves condition" since her military discharge. There is no VA etiology examination of record with respect to the Veteran's claimed psychiatric disorder. As the record establishes the existence of a current psychiatric disorder and in-service complaints related to a psychiatric disorder, a VA examination is required to determine the nature and etiology of the Veteran's claimed psychiatric disorder. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon, supra. With respect to the Veteran's nerve damage of the right shoulder claim, in her July 2007 claim, the Veteran stated that she was filing a claim for nerve damage due to an in-service car accident. The Veteran's STRs do not document the car accident. The STRs also do not document complaints of or treatment for the Veteran's right shoulder. However, the Veteran's separation Report of Medical History dated in July 1973 documents that the Veteran was involved in an auto accident with her military recruiter in 1972. The examining physician, in response, noted that the auto accident involved trauma to the Veteran's back and bruises to various portions of her body. The examiner indicated that no medical attention was sought for the accident. The Veteran told the examiner that she thought she might have some disability from the accident. Notwithstanding the foregoing, the Veteran is competent to testify to her in-service car accident and subsequent shoulder problems. Therefore, the Board finds the Veteran's contentions credible and it is reasonable to conclude that the Veteran was involved in a motor vehicle accident during her active military service. Post-service, the Veteran was diagnosed with degenerative changes in the AC joint and tenonitis of the rotator cuff tendon of the right shoulder by a private physician in July 2007, based on magnetic resonance imaging (MRI) findings. There is no VA etiology examination of record with respect to the Veteran's claimed nerve disability of the right shoulder. As the record establishes the existence of current right shoulder diagnosis and documentation of an in-service car accident, a VA examination is required to determine the nature and etiology of the Veteran's claimed disability manifested by nerve damage, specifically involving the right shoulder. See 38 C.F.R. § 3.159(c)(4); see also McLendon, supra. The Veteran is hereby notified that it is her responsibility to report for these examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA psychiatric examination to ascertain the nature and etiology of the Veteran's current psychiatric disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and offer an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran has a current psychiatric disorder that is related to her active military service. In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's current right shoulder disorder, to include a neurological disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and offer an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran has a current right shoulder disorder that is related to her active military service, to include the in-service 1972 car accident. In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. 3. After any additional development or notice deemed appropriate, the record should again be reviewed. The claims should be readjudicated. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON THE NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).