Citation Nr: 1315967 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 12-06 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which initially denied reopening a claim of service connection for a psychiatric condition (previously claimed as a nervous condition) and a service connection claim for a bilateral foot disorder. The Veteran timely appealed that decision. This case was last before the Board in June 2012, when the Board reopened the psychiatric claim and remanded both that reopened claim and the bilateral foot claim for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND With regards to the psychiatric claim, the Board notes that it requested the following instructions in the previous remand, in pertinent part: After any additional records have been received, obtain an addendum opinion to the November 2010 VA examination. If deemed necessary, afford the Veteran a VA psychiatric examination. The claims file should be reviewed by the examiner and the examination report should note that the claims file was reviewed, including service treatment and personnel records. (Emphasis added). Such an addendum was obtained on June 18, 2012. The Board notes, however, that a significant number of private treatment records appear in the record after June 18, 2012. Thus, the examiner did not have the benefit of reviewing those records when providing the requested addendum. Also, it appears that the RO/AMC deemed it necessary that the Veteran undergo a psychiatric evaluation, and it appears that such an evaluation was scheduled for July 9, 2012. The Veteran failed to appear for that examination. The Board cannot find any evidence in the record which demonstrates that the Veteran was notified of that scheduled evaluation. Moreover, it appears that even the RO/AMC found the June 2012 addendum to be inadequate as it then ordered an evaluation subsequent to that. In light of these facts, the Board finds that a remand is necessary in order to afford the Veteran a psychiatric evaluation. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Turning to the bilateral foot claim, the Board notes that a VA examination was obtained in July 2012; an addendum to that examiner's opinion was obtained in January 2013. After reviewing both of those opinions, the Board notes that those opinions focus on the fact that the Veteran's claimed injury is 60 years old, and that there is incomplete information in the file regarding whether the currently diagnosed conditions existed in 1946 or whether there was any intercurrent injury to his feet; the doctor additionally generally relies on "medical literature review, medical files review, [and] clinical experience" as his rationale for his opinion. The Board notes that there is no citation to any medical literature relied upon either in the opinion, or submitted with the opinion. The examiner additionally relies too heavily on the fact that "it was unknown whether any intercurrent injury" occurred or not. The Board finds that the examiner's opinions and rationale are not adequately explained in this case and focus too much on the evidence not in the claims file rather than the evidence available in the claims file. Thus, the Board finds that a remand is necessary in order to obtain an addendum opinion. See Barr, supra. Finally, in a March 2013 statement, the Veteran indicated that he would be sending additional evidence from a dentist in Michigan, as well as his family doctor, R. Lopez. It does not appear that any of those records have been obtained at this time, nor does it appear that these records were previously identified or any attempt to obtain them was undertaken by VA. As such are now identified as potentially relevant outstanding records, VA has a duty to assist in obtaining those records. Such should be accomplished on remand. Also, any other ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any relevant VA treatment records from the Gainesville VA Medical Center, or any other VA medical facility that may have treated the Veteran, since May 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his psychiatric or bilateral feet disorders, which is not already of record, including the dentist from Michigan and Dr. R. Lopez, as well as any ongoing treatment from Oakhurst Nursing Home or other private care provider. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Furnish the Veteran's claims file to the previous VA examiner in order to provide an addendum to the July 2012 and January 2013 VA examination report and subsequent addendum. The examiner should specifically state in his addendum that the entire claims file has been reviewed, including this REMAND order as well as his previous VA examination report and addendum. The examiner is to find as conclusive fact that the Veteran dropped a heavy shell on his feet during military service, as corroborated by the Veteran's buddy statement. After review of the claims file, the examiner should specifically address the following: (a) For each listed bilateral foot diagnosis from the July 2012 VA examination, the examiner should opine whether it is more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include dropping a heavy shell on his feet. (b) The examiner must acknowledge symptoms experienced during and after discharge from service, and should discuss any lay evidence as it relates to the development of a foot disorder and provide information as to how the statements comport with generally accepted medical norms. (c) The examiner should not focus on the evidence that is not contained in the claims file (e.g., the presence of any intercurrent foot injury since discharge), but rather on the evidence and contentions of record (e.g., that the Veteran's bilateral foot conditions are due to having a heavy shell dropped on his feet in service). (d) The examiner should attach any medical literature, or otherwise provide citations for the medical literature, he is relying upon in his opinions. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the July 2012/January 2013 VA examiner is unavailable to respond, a comparably qualified examiner can render an addendum which addresses the above. If the July 2012/January 2013 VA examiner or any subsequent examiner cannot opine to the above without examination of the Veteran, he should be afforded an examination. 4. Schedule the Veteran for a VA psychiatric examination to determine whether any current psychiatric disorder is related to service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found, including depression, anxiety, and dementia. The examiner should also specifically determine whether the Veteran meets the diagnostic criteria for PTSD under the DSM-IV as noted by 38 C.F.R. § 4.125; in that discussion, the examiner should reconcile the March 2010 statement from Dr. K that the Veteran has PTSD with the findings in the November 2010 examination. Next, the examiner should opine as to the following: (a) Only if PTSD is diagnosed, the examiner should opine whether the Veteran's PTSD is more likely, less likely or at least as likely as not (50 percent probability or greater) began in or was caused by his military service, to include his participation in World War II. The examiner should specifically discuss the Veteran's credible fear of hostile military activity during World War II as a stressor. (b) For any other diagnosed psychiatric disorder, including dementia, anxiety, or depression, the examiner is asked to opine whether such diagnosed psychiatric disorder more likely, less likely or at least as likely as not (50 percent probability or greater) began in or is the result of military service, to include his participation in World War II. (c) The examiner should discuss symptoms experienced during and after discharge from service, lay and medical evidence with regard to continuity of symptomatology since discharge from service, and any other lay statements with regard to the development of his psychiatric disorder and how such statements comport with generally accepted medical norms. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. The RO/AMC should document the process used to notify the Veteran of any scheduled examinations. The Veteran is reminded that failure to report to any scheduled examination may lead to denial of his claims on the evidence of record. 6. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for a psychiatric disorder, to include PTSD, and a bilateral foot disorder. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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). _________________________________________________ J. A. MARKEY 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).