Citation Nr: 1312645 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 03-34 788A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include a dysthymic disorder, secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty for training from January to May 1967 and on active duty from May 1968 to June 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In June 2007, the Board denied entitlement to service connection for a dysthymic disorder, secondary to service-connected disabilities. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2010, the Court vacated the Board's denial and remanded the issue for further proceedings consistent with its Memorandum Decision. In September 2010 and December 2012, the Board remanded the claim for further development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue remaining on appeal. As noted in December 2012, the record raises the issue of entitlement to special monthly compensation for the loss of use of a creative organ. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the agency of original jurisdiction (AOJ) for appropriate and immediate consideration. 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 In this case, the Veteran asserts that his current psychiatric disorder is secondary to his service-connected disabilities. He is currently service-connected for coronary artery and hypertensive heart disease (60 percent); diabetes mellitus (20 percent); peripheral neuropathy of each upper and lower extremity (each 20 percent); lumbosacral strain with degenerative joint disease (20 percent); diabetic retinopathy (0 percent); erectile dysfunction (0 percent); and cataracts (0 percent). His combined rating is 90 percent, and he was awarded a total disability rating based on individual unemployability effective February 22, 2012. A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). With respect to aggravation, the baseline level of disability pre-aggravation must be compared to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran may be compensated only for the degree of disability over and above the baseline plus natural progression. Id.; Allen, 7 Vet. App. at 448. In other words, there must be a permanent worsening beyond natural progression rather than temporary or intermittent flare-ups. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). In December 2012, the Board remanded the claim, in part, to obtain a VA medical opinion as to whether the Veteran's psychiatric disorder was aggravated (i.e., permanently worsened) by his service-connected disabilities. In January 2013, the September 2010 VA examiner provided a supplemental report addressing this issue. She opined that the current severity of the Veteran's psychiatric disability was not greater than the baseline level. In other words, the examiner found that the appellant's psychiatric disability was not aggravated by his service connected disorders. The rationale provided was that the baseline level was mild as the Veteran held steady employment from 1972 to 1992 until he retired due to physical problems. Since then, he reported only sporadic, limited outpatient psychiatric treatment over the years "with no involvement in psychiatric treatment since 2007, again consistent with mild severity." A review of the claims file, however, reflects that the Veteran received private treatment at West Penn Medical Associates through at least August 2010. These records note the appellant's continued problems with depression and posttraumatic stress disorder. In addition, a review of the Virtual VA electronic claims file reflects that his primary care physician at VA considered starting the Veteran on a selective serotonin reuptake inhibitor as recently as July 2011. Based on the foregoing, the September 2010 VA examiner's conclusion that the Veteran has had no psychiatric treatment since 2007 appears inaccurate. Therefore, the rationale for her opinion is inadequate and an addendum opinion addressing the full record must be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he identify the name, address, and approximate beginning and ending dates of all VA and non-VA health care providers who have treated him for any psychiatric disorder since 2007. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After associating with the record all evidence obtained in connection with the above development to the extent possible, the RO/AMC should arrange for the psychologist who conducted the September 2010 examination, or another equally qualified psychiatrist or psychologist, to prepare an addendum opinion. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. Based on a review of the claims folder, to specifically include the private treatment records from West Penn Medical Associates and VA treatment records in Virtual VA, the examiner is to address the following: For each psychiatric disorder diagnosed in the September 2010 examination report, address whether the disorder is aggravated, i.e., worsened beyond its natural progression, by any individual service connected disorder, or the combined impact of all service connected disorders. If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. If the examiner cannot offer an opinion that fact must be noted and an explanation provided why the opinion cannot be provided. If the opinion cannot be offered without further examination, then further examination must be provided. 3. If further examination is necessary, the Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO/AMC should review any report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. Upon completion of the above development, and any additional development deemed appropriate, the RO/AMC must readjudicate the issue on appeal. All applicable laws and regulations must be considered. If the benefit sought on appeal remains denied, the appellant and any representative must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). This claim 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). _________________________________________________ DEREK R. BROWN 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).