Citation Nr: 1301718 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-29 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder (claimed as anxiety with depression), to include as secondary to the Veteran's service-connected right leg, left leg, and lumbar spine disabilities. 2. Entitlement to an initial evaluation in excess of 10 percent for the service-connected right leg disability, status-post fracture of the right tibia and fibula with open reduction and internal fixation. REPRESENTATION Veteran represented by: David L. Huffman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1973 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Specifically, in an August 2008 rating decision, the RO denied entitlement to service connection for anxiety with depression, and the RO later continued that denial in a January 2009 rating decision. In addition, the RO issued a rating decision in October 2010 rating decision, which granted service connection for a right leg disability, status-post fracture of the right tibia and fibula with open reduction and internal fixation and assigned a 10 percent evaluation effective from April 14, 2008. During the course of the appeal, the RO recharacterized the Veteran's claim for service connection for anxiety with depression as a claim of service connection for an acquired psychiatric disorder, to include as secondary to the service-connected his right leg disability, as reflected in an August 2011 Supplemental Statement of the Case (SSOC). See Clemons v. Shinseki, 23 Vet. App 1 (2009) (holding that claims for service connection for one psychiatric disorder encompass claims for service connection for all psychiatric disabilities). In July 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Board's review of the claims file reveals that further RO action on the issues on appeal is warranted. With respect to the claim for service connection for an acquired psychiatric disorder, during the July 2012 hearing, the Veteran's attorney contended that he should be afforded a VA examination to "properly evaluate whether his current service-connected conditions, in total, cause a psychiatric condition." See hearing transcript, p. 3. She contended that, since the last VA examination, the Veteran was granted service connection for a lumbar spine disability; therefore, she reasoned, that the opinion request did not take into account all of the Veteran's service-connected disabilities. A review of the record shows that the June 2011 VA examiner's opinion addressed the diagnosed dysthymia with respect only to the service-connected right leg disability. However, the most recent VA medical opinion was dated in August 2011. That report included an opinion request which asked that the June 2011 examiner provide an opinion as to a relationship between the diagnoses of dysthymia and alcohol abuse, in remission, to all of the Veteran's service-connected disabilities, including the service-connected right leg disability; the service-connected right and left leg sciatica; and the service-connected lumbar spine disability. In his August 2011 opinion, the examiner opined that the Veteran's dysthymia was not related to his service-connected right leg disability; service-connected right and left leg sciatica; and/or, service-connected lumbar spine disability. He stated that dysthymia, "by definition, stands alone." He also indicated stated that a condition of a mood disorder secondary to the service-connected disabilities would be "more properly tie[d]" to the Veteran's depressed affect, but he did not provide a diagnosis of a mood disorder. Nevertheless, the examiner did not specifically address the issue of whether the Veteran's service-connected disabilities may have aggravated a current psychiatric disorder. The Court has held that when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995); see also 38 C.F.R. § 3.310; 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Therefore, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any psychiatric disorder may be present. In addition, during the July 2012 hearing, the Veteran reported that he received disability benefits from the Social Security Administration (SSA) for "a combination of things." See hearing transcript, pp. 15-16. However, it does not appear that any attempt has been made to obtain a copy of the SSA decision to grant benefits or the records upon which a decision was based. The Board is also unable to ascertain whether his SSA records pertain to the claimed acquired psychiatric disorder and/or the service-connected right leg disability currently on appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (finding that the duty to assist did not include obtaining SSA records where VA had a copy of the decision, and there was no evidence that the decision addressed the disability at issue in the appeal). Therefore, efforts to obtain the Veteran's SSA records should be made pursuant to 38 C.F.R. § 3.159(c)(2). See also Baker v. West, 11 Vet. App. 163, 139 (1998) (VA's duty to assist includes obtaining SSA records when the veteran reports receiving SSA disability benefits, as such records may contain relevant evidence). Lastly, it appears that there may be additional medical records that are pertinent to the claim for service connection for an acquired psychiatric disorder. During an April 2010 hearing before the Decision Review Officer (DRO) at the RO, the Veteran identified that he was treated by VA psychiatrist during the 1980's. See DRO hearing transcript, p. 13. A review of the claims file and the Veteran's Virtual VA electronic record shows that the identified VA treatment records have not been associated with the record. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell, 2 Vet. App. at 611. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should obtain a copy of the decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The RO or AMC should undertake appropriate development to obtain any outstanding medical records pertaining to treatment or evaluation of the Veteran's psychiatric disorder and his service-connected right leg disability, to include any relevant VA treatment records that are not already of record. A specific request should be made for records pertaining to psychiatric treatment in the 1980's, as identified during the April 2010 DRO hearing. 3. After obtaining any additional records identified by the appellant, the claims file and a copy of this remand should be returned to the June 2011 VA examiner (or if he is unavailable, to another suitably qualified examiner) for a medical opinion to determine the nature and etiology of any psychiatric disorders that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the appellant's service treatment records, post-service medical records, and statements. If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled. (An examination may be necessary if there are additional treatment records obtained that document new or different diagnoses of a psychiatric disorder.) It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is requested to review the claims file and his June 2011 and August 2011 opinions and to identify all current psychiatric disorders. He should specifically indicate whether the Veteran has a mood disorder. For each diagnosis identified, the examiner should discuss whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service. He should also state whether it is at least as likely as not that the disorder is either caused by or permanently aggravated by his service-connected right leg, left leg, and lumbar spine disabilities (either alone or in combination). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO/AMC should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO or AMC should implement corrective procedures. 5. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 6. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ JESSICA J. WILLS 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).