Citation Nr: 1302209 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-09 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include depression, anxiety, and posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities. 2. Entitlement to service connection for chronic pain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to October 1979. These matters initially came before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO denied entitlement to service connection for major depression, dysthymic disorder, PTSD, and chronic pain syndrome. The Veteran testified before the undersigned at a July 2009 videoconference hearing at the RO. A transcript of the hearing has been associated with his claims folder. In March 2010, the Board denied the claim of service connection for chronic pain syndrome and remanded the claim of service connection for a psychiatric disability for further development. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Court vacated the Board's March 2010 decision, in part, and remanded the case for readjudication in compliance with directives specified in a November 2010 Joint Motion filed by counsel for the Veteran and VA. In June 2011, the Board remanded the issue of entitlement to service connection for chronic pain syndrome for further development. In March 2012, the Board remanded all matters on appeal for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. In its March 2010, June 2011, and March 2012 remands, the Board noted that the issues of entitlement to an increased rating for a chronic low back disability and entitlement to special monthly compensation based on the need for regular aid and attendance of another person had been raised by the record. Also, in January 2012 the Veteran raised the issue of entitlement to burial benefits. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. In this case, VA treatment records reflect that the Veteran has been diagnosed as having various psychiatric disabilities. For example, a January 2009 VA pain medicine note and an April 2011 VA mental health treatment note include diagnoses of anxiety, depressive disorder, and PTSD. Thus, there is competent evidence of a current psychiatric disability. The Veteran contends that her current psychiatric disability is related to various psychiatric stressors in service or, in the alternative, her service-connected disabilities. The in-service stressors reported by the Veteran include being sexually harassed and assaulted on various occasions. In addition, the Veteran has reported various stressors that occurred outside of service, including the deaths of family members and abuse as a child. Moreover, her diagnosed psychiatric disabilities have been attributed to her in-service stressors and service-connected disabilities on numerous occasions. For example, a psychiatrist who conducted a December 2010 VA mental health medication management evaluation diagnosed the Veteran as having "PTSD from military sexual trauma" and reported that her pain from an "orthopedic condition/back" adversely influenced her mood. The Veteran is service-connected for low back, right knee, and left foot disabilities. In sum, there is competent evidence of a current psychiatric disability and in-service psychiatric stressors and medical evidence that the current psychiatric disability may be related to the Veteran's reported stressors in service or her service-connected disabilities. Thus, VA's duty to obtain an examination as to the nature and etiology of the current psychiatric disability, is triggered. Such an examination is needed to obtain a medical opinion as to the etiology of the current psychiatric disability. Additionally, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to her claims, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Veteran's Social Security Administration (SSA) disability records include records of treatment for psychiatric and chronic pain problems from the VA Northern California Health Care System dated as recently as December 2011. The most recent VA treatment records in the claims file from these facilities that were obtained by the AOJ are dated in October 2011 and there are no additional treatment records among the Veteran's paperless records in the Virtual VA system. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Furthermore, in its March 2012 remand, the Board instructed the AOJ to obtain from the State of California, or any other identified custodian, any available records pertaining to the Veteran's award of disability benefits from the State of California in April 2010. As noted by the Veteran's representative in its December 2012 statement, the AOJ subsequently attempted to obtain records from the California Adjutant General and the National Personnel Records Center. However, the Veteran did not serve with the California Army National Guard. Rather, she received disability benefits from the State of California, as noted by an April 2010 letter from the California Public Employees' Retirement System (CALPERS). There is no evidence that any efforts were taken to obtain any disability records from the State of California. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to insure compliance. Id. at 270-71. As the AOJ did not attempt to obtain any disability records from the State of California, the Board must again remand these claims for compliance with the instructions in its March 2012 remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for psychiatric, chronic pain, back, right knee, and left foot disabilities from the VA Northern California Health Care System from October 2011 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. The AOJ should undertake all necessary steps to obtain from the State of California or any other appropriate custodian of records all available records pertaining to the Veteran's award of disability benefits from the State of California in April 2010 (e.g. see the April 2010 letter from CALPERS). All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, she should be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning her claims, and she should be advised to submit any records in her possession. All such notification must be documented in the claims file. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any evidence received pertaining to the Veteran's disability retirement, schedule her for a VA psychiatric examination to determine the nature and etiology of her current psychiatric disability, including PTSD. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disability (any psychiatric disability diagnosed since January 2006) had its onset in service, is related to her reported stressors in service, or is otherwise related to a disease or injury in service? (b) If the Veteran meets the criteria for a diagnosis of PTSD, what are the stressors that support the diagnosis? (c) If any stressor supporting a diagnosis of PTSD consists of an in-service personal assault, is there evidence of behavior changes in response to the stressor? (d) Is it at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disability (any psychiatric disability diagnosed since January 2006) was caused (in whole or in part) by her service-connected chronic low back disability, chronic right knee disability, and/or residuals of a chip fracture of the second left toe. (e) Is it at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disability (any psychiatric disability diagnosed since January 2006) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by her service-connected chronic low back disability, chronic right knee disability, and/or residuals of a chip fracture of the second left toe. If any current psychiatric disability was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her symptoms over time. In formulating the above opinions, the examiner must acknowledge and comment on all psychiatric disabilities diagnosed since January 2006 (including depression, anxiety, and PTSD), all of the Veteran's reported stressors in service, and all of her reported stressors outside of service. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of a particular stressor or of treatment for psychiatric problems in the Veteran's service records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report stressors in service, her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. The AOJ should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 5. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ THOMAS H. O'SHAY Acting 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).