Citation Nr: 1313692 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 05-37 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from August 1991 to March 1992. She also had service in the Army Reserves and Indiana National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin. The issue on appeal was previously styled as entitlement to service connection for an acquired psychiatric disability, and was adjudicated by the RO on a direct incurrence basis. In a brief, dated in October 2012, the Veteran's representative has alleged that service connection on a secondary basis may be warranted. Thus, the issue on appeal has been recharcterized to appropriately reflect the Veteran's contentions. This matter was previously before the Board in August 2011 when it was remanded for further development. It has now returned to the Board for further appellate 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 A July 2012 VA examination report reflects the opinion of the examiner that it is less likely than not that there is a direct connection between the Veteran's current mood disorder and her service. The examiner diagnosed the Veteran with mood disorder, not otherwise specified. He noted the following factors for Axis III (physical conditions which may play a role in diagnosis) of the diagnosis: "complaints of numerous joints and back pain as well as some generalized body discomfort which at one point resulted in a diagnosis of fibromyalgia." The Veteran is service connected for mechanical low back pain effective since March 1992. The RO has not considered whether the Veteran is entitled to service connection as secondary to a service-connected disability. In addition the VA examiner did not render an opinion, with rationale, as to whether it is as likely as not that the Veteran's current acquired psychiatric disability is causally related to, or chronically aggravated by, her service-connected low back disability. Historically, May and June 1995 VA records reflect that the Veteran reported that she had a dependency to alcohol which she contended was her manner of coping with her back pain and other stressors. It was noted that she had "a lot of psychological issues to deal with besides the constant back pain (pressure in lower back). Stressors include loss of income, loss of potential for career, rehab, inability to provide for children and the stress of being home health care provider for her significant other who is in advanced stage of AIDS." In August 1995, the Veteran reported increased symptoms of low back pain, and the continued usage of Darvon for pain control. She also described recent events leading to climax of an episodic stressor (being a caretaker of a close friend that passed away). In approximately October 1996, the Veteran was involved in a motor vehicle accident with an exacerbation of her back injury. 1996 and 1997 clinical records reflect that the Veteran was seen for depressive disorder and PTSD allegedly due to the 1996 motor vehicle accident. An October 1996 record reflects that the Veteran was taking Zoloft for depression. An August 1998 VA record reflects the opinion of the examiner as follows: Historically, the low back symptoms previously adjudicated as service connected were significantly improved until exacerbated following the vehicle accident in 1996. Based on the history of prior psychiatric and personality trait disorders with substance abuse, the vehicle accident may have exacerbated psychiatric symptoms however, this evaluation did not address those issues." It was noted that a June 1996 record reflects that an MMPI was pathological, consistent with somatoform disorder with a prominent conversion V and indications of a dependent personality. Records in 2006 reflect stressors of multiple deaths, the Veteran's impression that she was the victim of racial profiling, and criminal charges (and jail time) for operating a vehicle while under the influence. Based on the foregoing, the Board finds that an addendum to the July 2012 VA opinion may be useful to the Board in adjudicating the Veteran's claim. The Board also notes that the evidence reflects that the Veteran may have applied for Social Security Administration (SSA) disability benefits. VA should attempt to obtain SSA records and associate them with the claims file. Finally, VA should inform the Veteran of the elements necessary to establish service connection on a secondary basis. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issue of entitlement to an acquired psychiatric disability as secondary to a service-connected disability in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2012), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and any other applicable legal precedent. 2. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision. 3. Thereafter, make arrangements with the July 2012 VA examiner, if available, to provide a supplemental medical opinion in this case. The examiner should provide an opinion as to whether it is as least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability caused by, or aggravated by her service-connected back disability. The term "aggravation" means that there is an increase in severity of a nonservice-connected disability or an injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The claims folder and a copy of this remand must be made available to the examiner and clinical findings should be reported in detail. Any opinion should be accompanied by a supporting rationale. If the July 2012 examiner is not available, or does not feel that he can render an adequate opinion without an examination of the Veteran, the Veteran should be scheduled for such an examination. 4. Following completion of the above, adjudicate the issue on appeal, with consideration of all evidence of record received since issuance of the most recent supplemental statement of the case. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and her representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MILO H. HAWLEY 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).