Citation Nr: 1313071 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-36 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include depression. 2. Entitlement to a rating in excess of 10 percent for lumbosacral strain with intervertebral disc syndrome. 3. Entitlement to a rating in excess of 10 percent for residuals of right forearm crush injury (non-displaced fracture of distal one-third of radius) with tendonitis. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1986 to February 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Veteran had also initiated an appeal in the matter of the rating for hemorrhoids. He excluded this issue from his substantive appeal on a September 2009 VA Form 9. Consequently, such matter is not before the Board. See 38 C.F.R. §§ 20.200, 20.302 (2012). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND At his November 2012 hearing, the Veteran testified that he continues to receive regular VA treatment for his disabilities. The most recent VA treatment records associated with the claims file are dated in June 2009. All outstanding and relevant VA medical records must be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Service Connection Claim The Veteran's service treatment records (STRs) include an April 1996 Report of Medical History, wherein he responded "yes" to having a history of frequent trouble sleeping and a history of depression or excessive worry, and responded "don't know" to having a history of loss of memory or amnesia and a history of nervous trouble of any sort. Following his discharge from service, a February 2006 VA treatment record notes that the Veteran was depressed and had nightmares. An April 2006 VA treatment record noted the Veteran's reports of symptoms related to "a stressful military experience"; he reported that he was in a few altercations with other military personnel while in service; the assessment was depressive symptoms (provisional) and PTSD symptoms (provisional). A May 2006 VA treatment record notes the Veteran's report of current trouble with his wife (from whom he was separated) as well as a history of domestic violence with the wife while in the military; the assessment was provisional adjustment disorder and depression. An August 2006 VA treatment record notes that the Veteran was the subject of an Article 15 disciplinary action in service for fighting; the assessment was alcohol-induced depression, with a note to rule out major depressive disorder. An April 2007 VA treatment record notes an assessment of depression not otherwise specified (NOS). The Veteran's complete service personnel file (to include records of any disciplinary actions in service) may contain information pertinent to his claim and should be secured. The Veteran has also asserted that his current depression is secondary to pain from his service-connected disabilities. An April 2008 VA treatment record notes an assessment of depression secondary to medical condition (chronic pain). An August 2008 VA treatment record notes an assessment of depression due to chronic pain. Neither of these treatment records specifies which disability or disabilities caused such chronic pain. An examination to ascertain the nature and likely etiology of any current acquired psychiatric disorder (to include whether any such disorder is secondary to a service-connected disability) is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Increased Rating Claims The Veteran testified at his November 2012 hearing that his service-connected lumbar spine disability and his service-connected right forearm disability have both worsened since his most recent VA examination for such disabilities in October 2007 (more than five years ago). Specifically, he alleges that he has suffered from more incapacitating episodes caused by his lumbar spine disability and that he has neurological symptoms associated with his right forearm disability. In light of his testimony concerning his current symptoms and his assertion that these disabilities have worsened, the Board concludes that a contemporaneous examination to assess the severity of both disabilities is necessary. The record also reflects that the Veteran receives Social Security Administration (SSA) benefits due to his lumbar spine disability. While SSA records have been associated with the claims file, the decision awarding such benefits is not of record. A request must be made to the SSA for a complete set of records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). TDIU Claim The Veteran filed a claim for a TDIU rating in May 2007. In August 2007, his employer (the U.S. Postal Service) submitted a VA Form 21-4192 indicating that the Veteran was still employed. Thereafter, however, the record reflects that the Veteran stopped working in September 2008 after being notified by a September 2008 letter from the Office of Personnel Management (OPM) that he was approved for a disability retirement. The claim for a TDIU is considered to be inextricably intertwined with the other claims on appeal, as the evidence received in connection with the other claims could materially affect the outcome of the TDIU claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the claim for a TDIU must be readjudicated after the other claims on appeal are readjudicated following the completion of the development requested on remand. Accordingly, the case is REMANDED for the following: 1. The RO should secure for association with the record copies of the Veteran's complete service personnel file, to include all records pertaining to any disciplinary actions against him in service. If such records are unavailable, the Veteran should be so notified. 2. The RO should ask the Veteran to identify the provider(s) of any evaluation or treatment he has received for his claimed disabilities (records of which are not already associated with the record), and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. The RO should obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason must be explained for the record. In addition, the RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disabilities since June 2009. If any records requested are unavailable, the reason must be explained for the record. 3. The RO should secure from SSA copies of all records pertaining to the Veteran, including any decisions on his claims and any medical evidence relied upon in making those decisions. If such records are unavailable, the reason must be noted in the record, and the Veteran should be so advised. 4. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to assess the severity of his service-connected lumbar spine disability and right forearm disabilities. The Veteran's entire record (to include the claims file with this remand and any records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies, such as x-rays and range of motion measurements, should be completed. All examination findings should be reported to allow for application of pertinent VA rating criteria. The examiner is requested to comment on any functional loss and/or limitations due to the disabilities. For the lumbar spine disability, the examiner should specifically comment on the number of weeks of incapacitating episodes (i.e., episodes in which the Veteran's adverse symptomatology required bedrest ordered by a physician), if any that the Veteran has experienced due to his service-connected lumbar spine disability in any given 12-month period since filing his claim. The examiner must also note whether there are any neurological symptoms other than sciatic neuropathy of both lower extremities, and if so describe their nature and severity. For the right forearm disability, the examiner should specifically address whether there any related neurological symptoms, and if so, identify the nerve(s) affected and describe the associated impairment (in terms of "slight," "moderate," "moderately severe," or "severe)." 5. After the development sought above is completed, the RO should arrange for a psychiatric evaluation of the Veteran to ascertain the nature and likely etiology of any current psychiatric disorders. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each psychiatric disability entity found (distinguishing any acquired disorder from, e.g., a personality disorder). If no such disability is diagnosed, please reconcile that conclusion with the findings noted in the VA treatment records. (b) As to any/each acquired psychiatric disability entity diagnosed, please identify the most likely etiology. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service, or was caused or aggravated (if an acquired psychiatric disability is diagnosed the opinion must specifically discuss aggravation) by a service-connected disability. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 6. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claims on appeal (TDIU after any further development indicated, and in light of the determinations made on the other issues). For the TDIU claim, consider the provisions of 38 C.F.R. § 4.16(b) if the schedular criteria remain unmet. If any benefit sought remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ GEORGE R. SENYK 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).