Citation Nr: 1301609 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-00 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for acquired psychiatric disability, including bipolar disorder and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for cervical spine disability. 3. Entitlement to a rating in excess of 30 percent for neck scar. 4. Entitlement to special monthly compensation based on a spouse's need for aid and attendance from another person. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to July 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction is now with the Chicago, Illinois RO. In March 2010, the Board remanded the claims for service connection for psychiatric disability, and entitlement to additional compensation for the Veteran's spouse based on the need for aid and attendance, for further development. In April 2011, the Board reopened the Veteran's claim for service connection for cervical spine disability on the basis that new and material evidence had been received, and remanded the reopened claim for further development. The issues of service connection for psychiatric disability and cervical spine disability are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's neck scar is not manifested by visible or palpable tissue loss or four or more characteristics of disfigurement and is not shown to be objectively painful. Limitation of function is not shown. 2. The Veteran's spouse is not shown to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; to be a patient in a nursing home; to be bedridden; or to otherwise have a factual need for aid and attendance. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for neck scar have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2012). 2. The criteria for entitlement to special monthly compensation based on a spouse's need for aid and attendance from another person are not met. 38 U.S.C.A. §§ 1114, 1115; 38 C.F.R. §§ 3.350, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In the present case, the Board finds that VA has satisfied its duty to notify. By way of VCAA notice letters sent to the Veteran in April 2005 and October 2006, the RO generally informed the Veteran of the evidence necessary to substantiate his claims and his and VA's responsibilities in claims development. Also, the Veteran was informed that in evaluating his disability, VA would consider evidence of the nature and symptoms of his condition; the severity and duration of his symptoms; and the impact of his condition and symptoms on employment. Additionally, he was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. The claims were readjudicated in December 2006 and June 2007 statements of the case, thereby correcting any defect in the timing of the notice. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the Veteran's claim. Pertinent medical evidence associated with the claims file consists of VA treatment records, private treatment records and the reports of VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative on his behalf. The Board notes that the Veteran last received a VA examination for his service-connected scar in November 2006. The Board notes, however, that the scar is rated based on the characteristics of disfigurement and there is no indication that it has become more disfiguring since November 2006. Nor is there any objective evidence indicating that the scar has worsened in severity since that date. In making this finding, it is noted that the record since 2006 has expanded significantly with multiple medical records being obtained. Nothing suggests that additional impairment is suggested as a result of the scar. Accordingly, a more contemporaneous examination of the scar is not necessary. The Board notes that no further RO action, prior to appellate consideration of the claims, is required. II. Analysis A. Increased rating for neck scar Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that staged ratings are not warranted here, as the degree of impairment due to the Veteran's neck scar has not varied significantly during the appeal period. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran is seeking a higher evaluation for his service-connected neck scar. The scar is evaluated under Diagnostic Code 7800, which pertains to disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. The Board notes that the regulation and rating code used for the evaluation of scars has recently changed effective from October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008), 38 C.F.R. § 4.118, Code 7800. However, the actual rating criteria described below are the same under the new version as the old version. The change for this particular rating code consists of the addition of two notes, one of which is not applicable to this case. The other note, pertaining to potentially assigning separate ratings for manifestations of a scar other than disfigurement, has been addressed in the discussion below. 38 C.F.R. § 4.118, Code 7800, Note 4. Diagnostic Code 7800 provides that an evaluation of 10 percent is warranted for disability of the skin of the head, face, or neck with one characteristic of disfigurement. An evaluation of 30 percent requires disability of the skin of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) or with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. Finally, a maximum 80 percent rating is warranted for disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (effective August 30, 2002). Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are as follows: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). In a November 1978 rating decision, the RO granted service connection for scar of the neck, residual laceration, and assigned a 10 percent rating effective August 1, 1978. In October 1979, the rating was decreased to 0 percent effective January 1, 1980. In October 1997, the rating was increased to 10 percent effective April 1997. In a January 2005 rating decision, the RO increased the rating for the scar to 30 percent effective August 30, 2002. The Veteran did not appeal this decision and it became final. In September 2006, the Veteran filed a claim for increase and in a February 2007 decision, the RO denied the claim. On November 2006 VA scar examination, the examiner noted that the Veteran had suffered a splinter injury of the left posterior neck in a fall from a tank on maneuvers during active duty in Germany. He had had an initial procedure that had evidently failed to remove the entire foreign body and then underwent a second more extensive procedure on September 30, 1977. He was subsequently left with a scar. The Veteran reported that he felt like his neck was stiff all the time. He also stated that he had intermittent pain, which he rated at 8 out of 10 involving his entire neck but particularly around the region of the scar. The pain was intermittent in nature and worsened by looking sideways. The pain was improved with Naproxen. He also stated that since his last rating examination, he had noticed several pinpoint bumps around the scar, which were very pruritic in nature. He had not noticed any mucopurulent discharge. He had also not had any wound dehiscence. Physical examination showed a 2 x 1 inch scar on the left posterolateral neck. The scar was very superifical in nature and well-healed. There was no pain on examination of the scar and it was not adhesed to underlying tissue. The texture of the skin was similar to the surrounding areas. The scar was not unstable. It was roughly .25 cm depressed compared to the surrounding tissue. There was no inflammation, edema or keloid formation. The color of the scar was similar to the surrounding skin. There was no gross distortion of the face or neck. There was no induration or inflexibility of the skin in the area of the scar. There was no limitation of motion or function caused by the scar. The total body surface area affected was less than 1 percent. The total exposed areas affected were 0 percent. There were six pinpoint acneiform lesions noted in the right lateral neck. There were no bumps or similar acneiform lesions noted in the area of the scar. The diagnosis was left posterolateral neck scar. The scar was superficial in nature. There was no loss of function or limitation of motion caused by the scar. The existing 30 percent rating has been assigned based on the presence of two characteristics of disfigurement, the scar being at least 1/2 inch wide and the surface contour of the scar being depressed on palpation. Other characteristics of disfigurement, including scar adherent to underlying tissue, skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.) and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.) are not shown. In this regard, the November 2006 VA examiner specifically found that the skin of the scar was not adherent to underlying tissue; that the texture of the skin of the scar was similar to the surrounding areas; that there was no induration or inflexibility of the skin in the area of the scar; and that the color of the scar was similar to the surrounding skin (thus indicating that the scar was not hypo-or hyperpigmented). Additionally, the scar was found to be 2 x 1 inches (and thus, not five or more inches in length) and was found to be superficial (and thus, did not involve underlying soft tissue missing in an area exceeding six square inches). See Note 1, following Diagnostic Code 7802, indicating that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Nor is there any additional objective evidence of record tending to indicate that any of these other characteristics of disfigurement are present. Accordingly, as more than two characteristics of disfigurement are not shown and as visual and palpable tissue loss is also not shown, a rating in excess of 30 percent under Code 7800 is not warranted. The Board has considered whether a higher or additional rating could be warranted under any other potentially applicable rating Codes. Although the Veteran reported pinpoint bumps in the area of the scar and has also reported itching, because the scar is not shown to cover more than 40 percent of the entire body or of exposed areas, a higher rating is not warranted for dermatitis or eczema. 38 C.F.R. § 4.118, Code 7806. Also, during the November 2006 VA examination, no pinpoint bumps (i.e. pinpoint acneiform lesions) were actually found in the area of the scar. Additionally, although the Veteran reported pain in his entire neck that was worse around the scar, during the November 2006 VA examination, the examiner specifically found that there was no pain on examination of the scar. Given this objective medical finding and the lack of other such findings objectively showing pain associated with the scar, the weight of the evidence is against a finding that the Veteran has any such pain (as opposed to pain from his underlying cervical spine disability) and a separate rating under Diagnostic Code 7804 is not warranted. 38 C.F.R. § 4.118. The Board has also considered whether the Veteran's claim for increase for neck scar should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. As explained above, the Veteran's symptomatology, including the two characteristics of disfigurement previously noted, is fully contemplated by the pertinent diagnostic criteria. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See Thun v. Peake, 22 Vet. App. 111 (2008). B. Aid and Attendance for the Veteran's spouse Any Veteran who is entitled to disability compensation at the rates provided in 38 U.S.C.A. § 1114, whose disability is rated not less than 30 percent disabling, and whose spouse is a patient in a nursing home, or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, is entitled to additional compensation. 38 U.S.C.A. § 1115. Under 38 C.F.R. § 3.351(a)(2), this special monthly compensation (SMC) is payable to a Veteran by reason of the spouses' need for aid and attendance. Here, the Veteran has a combined disability rating of 30 percent. Therefore, he meets the initial requirements for this provision. Under 38 C.F.R. § 3.351(b), the need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria for determining whether such need exists are set forth under 38 C.F.R. § 3.351(c). The criteria include consideration of whether the spouse is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or, whether the spouse is a patient in a nursing home because of mental or physical incapacity; or, whether the spouse has a factual need for aid and attendance. 38 C.F.R. § 3.351(c). In determining whether there is a factual need for regular aid and attendance, the following will be considered: whether the spouse is unable to dress or undress herself, or to keep herself ordinarily clean and presentable; whether the spouse requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability could not be done without aid; whether the spouse is unable to feed herself through loss of coordination of upper extremities or through extreme weakness; whether the spouse is unable to attend to the wants of nature; or, whether the spouse's incapacity requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal function that the spouse is unable to perform should be considered in connection with her disability as a whole. It is only necessary that the evidence establish that the spouse is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). An individual who is bedridden shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for a lesser or greater portion of the day to promote convalescence or cure will not suffice. Id. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In an August 2004 letter, a private physician indicated that the Veteran's wife had extensive and moderate to advanced degenerative joint disease involving the right knee joint, which significantly impaired her activities. She had severe difficulty standing and walking and she used a cane. She was currently unable to work. A July 2004 private X-ray of the right knee showed a diagnostic impression of moderately advanced degenerative joint disease. An October 2004 private MRI of the left knee produced diagnostic impressions of mildly advanced degenerative joint disease of the left knee and patella, particularly the medial compartment, a complete degeneration of the posterior and medial meniscus, a tear of the posterior and lateral mensiscus and minimal lateral deviation of the patella. An MRI of the right knee showed mildly advanced degenerative joint disease of the knee and patella with marked narrowing of the lateral joint space and spurring at the medial and lateral articular surface of the distal femur and proximal tibia. There was a complete degeneration of the lateral meniscus. The medial meniscus appeared intact. There was a small joint effusion and lateral deviation of the patella. September 2004 private X-rays of the left hand produced a diagnostic impression of degenerative joint disease involving the interphalangeal articulation of the thumb and the distal interphalangeal articulations of the index and middle fingers. Similarly, a right hand X-ray showed degenerative joint disease involving the interphalangeal articulation of the thumb and the distal interphalangeal articulations of the index and middle fingers. A November 2004 private medical report shows that the Veteran's wife was found to have severe internal derangement of both knees. A subsequent December 2004 report also shows a diagnostic assessment of bilateral knee pain secondary to degenerative joint disease. It was noted that she continued to experience considerable pain in the knee joints with difficulty walking. It was also noted that she appeared to be severely symptomatic as cortisone injections had not helped her. An August 2006 VA aid and attendance and housebound examination report shows that the Veteran's spouse was noted to be overweight. No impairment in the upper extremities was found in reference to grip, fine movements and ability for self feeding, buttoning clothing, shaving and attending to the needs of nature. Regarding the lower extremities, it was noted that she walked only in the home, usually using a cane. On rare occasions, she would use a walker. She went to the store only twice a month, she went to church on Sundays and she attended her doctor's appointments. She had not experienced any falls. It was painful for her to go through her range of motion. She had pain at the joint line and with weight bearing. She had no restrictions of the spine, neck, or trunk. Additionally, she was noted to be frequently in bed. She was up for a few hours per day to eat and to sit and converse with family. It was noted that she would benefit from a tub chair and that she was on the waiting list for joint replacement surgery. The diagnosis was degenerative joint disease of both knees. June 2008 EGD testing produced diagnoses of suspect iron deficiency anemia related to Cameron lesions, large hiatal hernia and gastric mucosa nodularity within the hiatal hernia, likely within normal limits. A June 2008 pathology report shows that biopsies of the duodenum, antrum and hiatal hernia showed duodenal mucosa not diagnostic of sprue; gastric antral mucosa with chronic active gastritis; and numerous H. Pylori organisms and polypoid fragment of gastric type mucosa with chronic gastritis and H. Pylori organisms. In a January 2009 letter, a private social worker indicated that the Veteran's spouse underwent a total left knee arthroplasty on January 15, 2009. She was provided with a rolling walker to assist her in getting around. Her occupational therapist also recommended a composite tub transfer bench, commode, reacher, and sock aid. The spouse returned home with home health services in place to help her return to full functional status. In a September 2009 letter, a private social worker indicated that the Veteran's spouse underwent a total right knee arthroplasty on September 2, 2009. Once surgery was completed, she was transferred to a rehabilitation unit where she received physical and occupational therapy from September 3, 2009 to September 10, 2009. She was not provided any adaptive equipment as she already had the recommended adaptive equipment. The occupational therapist did recommend a composite transfer bench and shower rails for safety for use until the spouse returned to full functional status. A January 2010 private cervical spine X-ray produced a diagnostic impression of endplate spurs at level C5-6 compatible with endplate degenerative change and slight prominent transverse processes of C7 reflecting anatomic variant. A January 2010 private progress note shows diagnoses of possible cervical syndrome, questionable carpal tunnel syndrome and hypertension. June 2010 private NCS/EMG testing produced a diagnostic impression for the Veteran's spouse of abnormal study in both arms due to electrophysiological evidence of a moderately severe right, and a mild to moderately severe left, carpal tunnel syndrome. In a July 2010 statement, the Veteran's spouse commented on the Veteran's neck pain. She noted that he complained about the pain while lying in bed, which irritated her. The above evidence indicates that the Veteran's spouse lives at home. Thus, she is not a patient in a nursing home. Also, there is no indication that she has corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. Regarding a factual need for aid and attendance, there is no indication that she is unable to dress or undress herself or keep herself ordinarily clean and presentable. To the contrary, the August 2006 VA aid and attendance and housebound examination report shows that no impairment in the upper extremities was found in reference to grip, fine movements and the ability for self-feeding, buttoning clothing, shaving and attending to the needs of nature. Additionally, although the spouse was later found to have an abnormal nerve study indicative of bilateral carpal tunnel syndrome, along with some cervical degenerative changes, there is no indication that these problems, in conjunction with her other disabilities, have made her unable to take care of these basic activities of daily living. At the time of the August 2006 VA examination, the spouse was using a cane and rarely a walker to walk at home but there is no indication that these orthopedic appliances needed frequent adjustment for which she required aid. Similarly, the January 2009 and September 2009 letters indicate that in conjunction with her recovery from the bilateral total knee replacements she was provided a rolling walker and recommended to have a composite tub transfer bench, commode, reacher and sock aid. Inasmuch as any of these appliances were permanent in nature, there is no indication that they have required frequent adjustment for which she has required aid. Additionally, although she was provided with temporary home health service, at least in January 2009, this was not based on an ongoing need for aid and attendance but was simply a temporary measure to help her return to full functional status. Further, there is also no indication that the spouse has any incapacity, which would require assistance on a regular basis to protect her from the hazards or dangers to her daily environment. Instead, the evidence tends to show only that the spouse's mobility was severely limited following the 2009 knee replacement surgeries and that she also has additional health problems, including the degenerative joint disease of the hands and fingers, carpal tunnel syndrome, degenerative changes of the cervical spine and some gastrointestinal disability and anemia, none of which has compromised her ability to protect herself from hazards or dangers. Moreover, there is no indication that she is bedridden. In August 2006, she was apparently spending a lot of time in bed but was also noted to be going to church, to the store and to her doctor's appointments. Nor is there any other evidence tending to indicate that any of her conditions alone or in combination require her to remain in bed. For all of the above reasons, the Veteran's spouse is not shown to have a factual need for aid and attendance. In summary, there is no indication that the Veteran's spouse has corrected visual acuity of 5/200 or less in both eyes or concentric contraction of the visual field to 5 degrees or less. She is not shown to be a patient in a nursing home, to be bedridden or to otherwise have a factual need for aid and attendance. Accordingly, there is no basis for awarding special monthly compensation based on the need for aid and attendance. The preponderance of the evidence is against this claim and it must be denied. ORDER A rating in excess of 30 percent for neck scar is denied. Additional compensation for a spouse based on her need for aid and attendance from another person is denied. REMAND The record contains conflicting opinions concerning the nature and etiology of the Veteran's psychiatric disability. At a September 2005 VA psychological evaluation, the examiner did not diagnose the Veteran with PTSD, finding that the incident where he fell from the tank and landed on the piece of wood, resulting in injury to the neck, was not of sufficient severity to meet the DSM-IV stressor criteria. Also, in August 2006, a VA psychiatrist found no indication that the Veteran's bipolar disorder dated back to service. In contrast, in a letter received in August 2010, a VA treating psychiatrist opined that the Veteran's PTSD (and possibly the depressive aspect of his bipolar disorder) was very much more likely than not to be a result of the fall off the tank and that there was also likely an organic component to the psychiatric illness from a traumatic brain injury. The Veteran had reported that the fall occurred during live fire exercises when a shell almost hit his tank and the evidence showed that he did not just fall on a piece of wood; the piece of wood became embedded in his neck and had to be removed surgically. Also, the location of the Veteran's scarring indicated that he must have hit the back of his head as well as his neck when he fell, giving him a traumatic brain injury of sufficient severity that, according to his report, he was knocked out for about six hours. Additionally, the Veteran's report of having asked to see a psychiatrist just after the incident indicated a strong possibility of an acute post-traumatic stress response to his fall due to the proximity of the shell to the tank. The psychologist also believed that the Article 15 disciplinary actions against the Veteran after the tank injury for not having a magazine in his weapon and for leaving his post pointed to a strong possibility of an organic mood disorder (e.g. depression), which was part of bipolar disorder. Additionally, in a March 2009 letter, a private psychiatrist indicated that an individual with an underlying pre-existing bipolar condition was much more prone to experience PTSD sequelae and to have a more malignant course of the illness than those who did not have this fragile pre-morbid condition. Also, the two conditions fueled one another in a vicious cycle. Given the above conflicting opinions, the Board finds that a medical opinion by a panel of two psychiatrists or psychologists is warranted prior to final adjudication of this claim. The panel should review the claims file in detail, including the opinions mentioned above and the other pertinent evidence, and should then provide an opinion concerning the likely etiology of any current psychiatric disability. If after the claims file review, the panel determines that examination is necessary in order to appropriately formulate this opinion, such examination should be afforded to the Veteran. Regarding the Veteran's claim for cervical spine disability, subsequent to the issuance of the most recent December 2011 supplemental statement of the case, the Board received a December 2011 VA neurology attending physician's opinion, expressed in a treatment note, indicating that it is more likely than not that the Veteran's cervical degenerative stenosis is related to his original trauma in 1977 when he fell from a tank. This VA medical evidence has not been considered by the agency of original jurisdiction (AOJ) and neither the Veteran nor his representative has expressly waived initial AOJ consideration of it. Hence, a remand for AOJ consideration of this evidence, in the first instance, and issuance of a supplemental statement of the case (SSOC) reflecting such consideration, is warranted. 38 C.F.R. § 19.31, 19.37. Prior to arranging for the development described above, the RO/AMC should obtain any VA medical records of evaluation or treatment of the Veteran for psychiatric disability and cervical spine disability from October 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. RO/AMC should obtain any VA medical records of evaluation or treatment of the Veteran for psychiatric disability and cervical spine disability from October 2011 to the present. 2. The RO/AMC should arrange for the provision of a VA medical opinion by a panel made up of two psychiatrists, two psychologists or one psychiatrist and one psychologist. The Veteran's claims file, including copies of any relevant records located in Virtual VA, should be reviewed in detail. This review should include the service treatment records, service personnel records, any pertinent post-service medical records (including 1979 records documenting post-service head and neck injuries due to the Veteran being struck by a baseball bat and experiencing a car accident), pertinent post-service records of psychiatric and substance abuse treatment from 1993 to the present, the September 2005 VA psychological evaluation, the August 2006 VA psychiatrist's opinion, the March 2009 private psychiatrist's opinion, the August 2010 VA psychiatrist's opinion, the statements of the Veteran, his family members and his representative, and any other information deemed pertinent. If after the claims file review, the panel determines that examination is necessary in order to appropriately formulate this opinion, such examination should be afforded to the Veteran. The panel should then provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent chance or greater) that any current psychiatric disorder, to include PTSD, bipolar disorder and/or any organic disorder, is related to the Veteran's military service, including the fall from the tank therein. The panel should provide a detailed rationale for the opinion given. 3. Thereafter, the AMC/RO should readjudicate the claims for service connection for psychiatric disorder and cervical spine disability, in light of all pertinent evidence and legal authority. Readjudication of the claim for cervical spine disability should specifically include review and consideration of the December 2011 VA neurologist's opinion, in conjunction with all the other pertinent evidence. If in reviewing the evidence concerning the cervical spinal disorder, it is concluded that examination or opinion is indicated, such additional development should be undertaken. If either benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken on the claims. An appropriate period of time should be allowed for response before the claims file is returned to the Board for further appellate consideration. The Board intimates no opinion as to the ultimate outcome in this case by the action taken herein. 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). The claims 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs