Citation Nr: 1300977 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-47 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disability to include bipolar disorder. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for the residuals of a right arm fracture. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for a liver disability, claimed as cirrhosis of the liver. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran had active service from July 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in part, denied service connection for bipolar disorder, a low back disability, and the residuals of a fractured right arm. An August 2009 rating decision denied service connection for hepatitis C and cirrhosis of the liver. Claims for service connection for psychiatric disorders may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue on appeal more generally. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of this testimony is associated with the claims file. 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 claims service connection for multiple disabilities which he alleges were incurred during active duty. First the Veteran claims service connection for a psychiatric disability. On his original claim he indicated that the disability in question was "bipolar disorder mood swings." Subsequently, he has alleged that he had feelings of depression during service. He testified that he was seen by a chaplain once during service when he sought counseling for his feelings of depression. He also testified that the chaplain allegedly administered a psychological test, but that he was never treated or medicated for his claimed psychiatric disability. Available service treatment records do not reveal any complaints of, treatment for, or diagnosis of any psychiatric symptoms during service. Psychiatric clinical evaluation was normal on separation examination. The Veteran has reported a very vague and inconsistent history with respect to his claimed psychiatric diagnosis and treatment, or lack thereof. On an October 2008 VA Compensation and Pension examination, the examiner diagnosed the Veteran with bipolar disorder. However, it was unclear from the report whether the examiner based this diagnosis primarily on the Veteran's own reported prior diagnosis of bipolar disorder, as the examiner did not state a rationale for the diagnosis or indicate which criteria were met to warrant the diagnosis. At the July 2012 hearing, the Veteran indicated that he was currently being treated for a psychiatric disability by VA and that he was prescribed medication for the disability. The Veteran claims that he injured his back during active service when he was in a motor vehicle accident. He specifically claims that he was in an armored personnel carrier (APC) that rolled down a hill and hit another vehicle. Regardless of the absence of any evidence of a back injury in the service treatment records, and a normal spine documented on separation examination, he is competent to testify as to such an injury. However, the June 2008 VA examination report, and the November 2008 addendum, did not provide nexus opinions based upon the Veteran's assertions of in-service injury. The Veteran claims he fractured his right arm during service. He has been vague with respect to his assertions as to the actual in-service injury. At times he has asserted that the right arm fracture was low on his arm affecting his wrist area. At other times he has asserted that it was much higher on the arm, affecting his elbow area. The 2008 Compensation and Pension examination indicates a diagnosis of no right arm disability, despite some x-ray evidence of abnormality. Moreover, no adequate nexus opinion was rendered. Finally, the Veteran claims service connection for hepatitis C and cirrhosis of the liver. He claims that he contracted these disabilities as a result receiving inoculations by "air gun" during active service. He further asserts that he has had no other risk factors that would account for his contracting the hepatitis C virus. A November 2008 VA treatment record confirms that the Veteran is diagnosed with chronic hepatitis C, genotype 1 which was diagnosed in 2007. There is no evidence in the record of a diagnosis of cirrhosis. Despite the Veteran's assertions of having no hepatitis risk factor outside of his active duty service period, the November 2008 treatment record indicates a post-service period of prison incarceration from 1986 to 1992, and a history of sexually transmitted diseases (STD) as risk factors. The Veteran reported a pre-service history of STD on his entry examination medical history form. Also, a long post-service history of alcohol abuse is noted in the record as is some indication of cocaine use. VA Fast Letter 04-13 indicates that the large majority of hepatitis C "infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HCV with air gun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the veteran's hepatitis C." The Veteran has not been accorded a Compensation and Pension examination with respect to these two claims. Essentially, all the evidence related to the Compensation and Pension examinations of record is inadequate. Either the necessary examinations were not conducted as in the case of the claims for hepatitis C and a liver disability; or the examination reports contain incomplete or inadequate nexus opinions. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Additional examination is required, as the most recent medical evidence does not adequately address the Veteran's assertions regarding secondary service connection. The VA medical treatment records contained in the file are only dated up to 2009. At the recent hearing the Veteran alleged continued treatment for many of his claimed disabilities at VA medical facilities. Current treatment records must be obtained. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran to provide a list containing the names of all health care professionals and/or facilities (private and governmental) where he had been treated for his claimed disabilities since separation from service in 1975. Subsequently, and after securing the proper authorizations where necessary, the RO should make arrangements in order to obtain all the records of treatment from all the sources listed by the Veteran which are not already on file. Tell the Veteran to specifically identify which VA medical facilities he has received treatment from since 2009 and then obtain all the records of any treatment at VA facilities from 2009 to the present. If electronic VA medical records are reviewed, they must be placed in either the physical record of the Virtual VA record. 2. Schedule the Veteran for a psychiatric examination. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present. If there are different psychiatric disorders, the examiner should reconcile the diagnoses and should specify which symptoms are associated with and which disorders are part of or caused by the service-connected disorder. If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. The examiner should review the evidence of record to include an examination conducted in August 1974 which failed to reveal any mental defect. If examination reveals that a diagnosis of a current psychiatric disability is warranted, the examiner should address the following: Whether there is a 50 percent or better probability that the Veteran's current psychiatric disability was incurred during active service. The diagnosis should be in accordance with the DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4TH ed. 1994). If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The claims file a copy of this remand and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner should provide a complete rationale for all conclusions reached. 3. Schedule the Veteran for an appropriate examination for low back disabilities. The report of examination should include a detailed account of all manifestations of low back disorders found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The Veteran claims that he injured his low back during service when he was in an APC that rolled down a hill and hit another vehicle. The examiner should review the evidence of record including the service treatment records. The examiner should indicate: Whether there is a 50 percent or better probability that any current low back disability was incurred during active service as a result of the injury reported by the Veteran. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The claims file a copy of this remand and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner physician should provide a complete rationale for all conclusions reached. 4. Schedule the Veteran for the appropriate examination for a disability of the right arm. The report of examination should include a detailed account of all manifestations of a right arm disorders found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The Veteran claims that he fractured his right arm during service. The examiner should review the evidence of record including service treatment records. The examiner should address the following: Whether the Veteran warrants a diagnosis of any disability of the right arm; Whether there is a 50 percent or better probability that any current right arm disability, if present, was incurred during active service as a result of the injury reported by the Veteran. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The claims file a copy of this remand and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner physician should provide a complete rationale for all conclusions reached. 5. Schedule the Veteran for the appropriate examination for hepatitis and liver disabilities. The report of examination should include a detailed account of all manifestations of hepatitis C and liver disorders found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The Veteran claims that he was infected with hepatitis C as a result of inoculations by "air gun" injection during service. He asserts that he has no other risk factors that would account for his hepatitis C infection. The examiner should review the evidence of record with particular attention to documented hepatitis infection risk factors. The examiner should address the following: Whether the Veteran warrants a diagnosis of cirrhosis or other liver disability independent of hepatitis C; Whether there is a 50 percent or better probability that the Veteran's hepatitis C infection is the result of "air gun" injections during active. It is essential that the report includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was, or was not, the source of the Veteran's hepatitis C. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The claims file a copy of this remand and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner physician should provide a complete rationale for all conclusions reached. 6. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the requested reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2000) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994) 7. Following the above, readjudicate the Veteran's claims for service connection. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).