Citation Nr: 1302525 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 09-07 078A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA)Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include as secondary to service-connected ankle disability. 2. Entitlement to service connection for a left ankle disorder. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to August 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO denied service connection for PTSD. In March 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2009, and the Veteran filed a substantive appeal in February 2009. The Board notes that, while the Veteran was previously represented by the North Carolina Division of Veterans Affairs (NCDVA) in February 2010, before certification of the appeal to the Board, the NCDVA revoked its power of attorney by way of a letter sent to VA and the Veteran. As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se in this appeal. In May 2010, the Board denied the Veteran's claim for service connection for PTSD, and remanded the claim for a psychiatric disorder other than PTSD to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the AMC denied the claim (as reflected in an August 2010 supplemental SOC (SSOC)) and returned the matter remaining on appeal to the Board for appellate consideration. In May 2011, the Board denied service connection for an acquired psychiatric disorder other than PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In April 2012, the Court issued a Memorandum Decision vacating the Board's May 2011 decision and remanded the case to the Board for compliance with the Court's decision. The Board notes that, in addition to the paper claims file, there is paperless, electronic (Virtual VA) paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For reasons expressed below, the matter of service connection for psychiatric disorder other than PTSD (expanded, as reflected on the title page is being remanded for additional action. The remand also addresses the matter of service connection for a left ankle disorder-for which the Veteran has completed the first of two action required to place the claim in appellant status. VA will notify the Veteran when further action, on his part, is required. REMAND In light of points raised in the Court's Memorandum Decision, and the Board's review of the claims file, further RO action on this appeal is warranted. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. As was noted in the March 2011 Board decision, in a September 2009 VA treatment record, a VA physician noted that the Veteran had a history of drug and alcohol abuse and lifelong difficulties with aggressive and anxious tendencies. The Veteran was diagnosed with anxiety disorder, not otherwise specified, and major depression. The VA physician noted that the Veteran's military experience exacerbated these personality traits. However, the Board found that the September 2009 VA physician did not provide any support for this assertion, nor did he directly attribute any diagnosed psychiatric disability to the Veteran's service. In fact, the examiner specifically stated that the Veteran's condition was not related to any traumatic events or episodes. In the April 2012 Memorandum Decision, the Court noted the September 2009 VA treatment record referred to in the May 2011 decision and found that the opinion by the VA physician was inadequate and that the Board had a duty to return the opinion for either clarification of the VA's physician's opinion or a new opinion. See Memorandum Decision, at p. 3. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83 . In light of the September 2009 VA treatment records showing a possible link between the Veteran's anxiety disorder and major depression and his military service, current diagnoses of anxiety disorder and major depression, and the heightened duty to assist in this case, the Board finds that a VA examination and opinion, by an appropriate physician, would be helpful in resolving the claim for service connection. See 38 U.S.C.A. § 5103A 38 C.F.R. § 3.159 McLendon, 20 Vet. App. at 83. Hence, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the original claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655(a), (b) . Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before examiner is complete, on remand, the RO should also obtain and associate with the claims file all outstanding pertinent medical records. The claims file includes treatment records from the Durham VA Medical Center (VAMC), dated from July 2009 to November 2012). Also, in an October 2009 VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, the Veteran wrote that he had been treated at the Raleigh VAMC for his psychiatric disorder in September 2009. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent VA treatment records from the Durham and Raleigh VAMCs, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The Board further finds that additional notification action in connection with the claim on appeal is warranted. The Veteran has been awarded service connection for tendonitis status post surgical repair of the right ankle and residual scar status post right ankle surgery associated with tendonitis status post surgical repair, right ankle. The Veteran now asserts that his acquired psychiatric disorder is secondary to his service-connected right ankle disorders. Notice requirements under the Veterans Claims Assistance Act of 2000 (VCAA) essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), 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(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. The Veteran has asserted that his acquired psychiatric disorder may be secondary to his service-connected right ankle disorders. While a August 2007, May 2009, and August 2009 VCAA letters advised the Veteran of the information and evidence necessary to substantiate claims for service connection for an acquired psychiatric disorder on a direct basis, the Veteran was not advised of the information and evidence necessary to substantiate a claim for secondary service connection. Hence, the RO should, through VCAA-compliant notice, give the appellant another opportunity to provide evidence or information in support of the claims on appeal. The RO's notice letter should explain what information and evidence is needed to substantiate the claim for secondary service connection, pursuant to 38 C.F.R. § 3.310 (as revised in October 2006). The RO should also explain the respective responsibilities of VA and the appellant in obtaining additional evidence. The RO should advise the Veteran that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO should also ensure that its notice to the Veteran meets the requirements of the decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)-particularly as regards disability ratings and effective dates. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5103 , 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's readjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Finally, with regard to the left ankle claim, the claims file reflects that in an October 2011 rating decision, the RO denied the Veteran's claim for service connection for tendonitis of the left ankle. The RO also extended a temporary 100 percent evaluation pursuant to 38 C.F.R. § 4.30 for tendonitis status post surgical repair of the right ankle until December 1, 2011 and continued a 20 percent disability rating for the right ankle effective December 1, 2011. In November 2011 correspondence, the Veteran expressed his disagreement with the October 2011 rating decision with regard to the left ankle claim and requested an extension period for the temporary 100 percent rating. Subsequently, by rating decision dated in November 2012 the RO extended the temporary 100 percent rating for the right ankle to February 1, 2012 and in October 2012 correspondence the Veteran indicated that he was satisfied with the outcome regarding the right ankle. However, to date, the RO has not acknowledged the November 2011 document as an NOD with regard to the left ankle claim. Thus, the RO has not yet issued an SOC with respect to that claim, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 ; 38 C.F.R. §§ 20.200 , 20.201, 20.202. Accordingly, these matters are hereby REMANDED for the following action: 1. The RO must furnish to the Veteran with an SOC with respect to the October 2011 denial of service connection for a left ankle disorder, along with a VA Form 9, and afford the Veteran the appropriate opportunity to submit a substantive appeal perfecting an appeal on that issue. The Veteran is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-as regards the matter of service connection for a left ankle disorder, within 60 days of the issuance of the SOC. 2. The RO should obtain all outstanding records of mental health evaluation and/or treatment of the Veteran from the Durham and Raleigh VAMCs, particularly records from Durham dated from November 2012 to the present and records from Raleigh dated in September 2009. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO should send to the Veteran a VCAA-compliant letter requesting that he provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should explain how to establish entitlement to service connection for an acquired psychiatric disorder, as secondary to service-connected recurrent right ankle disorders on a secondary basis. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly identify any current acquired psychiatric disorders other than PTSD. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (1) was incurred or aggravated during or as a result of active service, or (2) was caused or is aggravated by the Veteran's service-connected right ankle disorder. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from aggravation. The examiner should specifically discuss the September 2009 VA treatment records wherein the VA physician diagnosed anxiety disorder and major depression and opined that the Veteran's military experience exacerbated these personality traits. The examiner should set forth all examination findings, along with complete rationale for any conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence (to particularly include all evidence added to the record since the RO's last adjudication of the claims) and legal authority. 9. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).