Citation Nr: 1319419 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 10-27 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974, November 1974 to November 1977, and from June 1981 to February 1984, with additional active duty for training service. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (RO). In May 2011, the Board issued a decision which denied the Veteran's claims herein. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, based on a Joint Motion for Remand (Joint Motion), the Court issued an Order remanding this case for compliance with the Joint Motion. In September 2012 the Board remanded for additional development. However additional development is required. This appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Service treatment records reveal that in June 1976 the Veteran was treated for symptoms of fever, chills, chest pain, and respiratory symptoms. Various diagnoses contained in the service treatment records for this period of time include flu syndrome, and pharyngitis. In a September 2008 the Veteran submitted a written statement which made assertions with respect to his claim for service connection for a knee disability. He stated "June 8, 1976 - U.S. Army Health Clinic Fort Buchanan. Also at VA H[ospital] on 6-5-76 at this time I have some x-ray or MRI done I don't have the results." In the JMR the Veteran's attorney specifically referenced these records with respect to the claim for service connection for a left knee disability. Review of all of the service treatment records from the June 1976 clearly show that evaluation and treatment was conducted for a respiratory infection. The June 8, 1976 service treatment record is a chest x-ray report related to the Veteran's respiratory symptoms. However, it does note that the Veteran reported being seen three days earlier at the VA Hospital. An attempt to obtain the Veteran's VA treatment records from June 1976 has not been made. This must be done. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Service treatment records reveal that the Veteran was admitted as an inpatient at the U.S. Army Hospital at Ft. Campbell, Kentucky in February 1973, for a period of two days. While the initial diagnosis was psychotic depression, the final diagnosis on discharge was depressive neurosis. These records were received by VA on October 25, 2012. With regard to the Veteran's claim for service connection for a psychiatric disorder, the Veteran was afforded a VA examination in October 2008 and an addendum to that examination was obtained in June 2009. The Joint Motion found that the June 2009 VA examination was inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). First, the Joint Motion noted that the June 2009 VA examiner failed to consider the favorable relevant evidence because the examiner did not address the February 1973 service treatment report noting a diagnosis of psychotic depression. Second, the Joint Motion found that the VA examination report contained inconsistent statements because the examiner stated in October 2008 that Veteran's currently diagnosed depressive condition and alcohol dependence were independent and not related; however, in the June 2009 addendum, the examiner opined that "[the] Veteran's mental condition is associate[d] or aggravates with alcohol dependence, rather than military service." Third, the Joint Motion found that the examiner's opinion did not provide an explanatory rationale for his conclusion. Fourth, the Joint Motion found that the significance of the examiner's statement that "[a]lthough the alcohol is depressive substance, but veteran is in abstinence since 3 month ago is not caused by or a result of depression and bipolar condition" was not explained. Finally, the Joint Motion found that due to a lack of clarity in the examiner's report, the opinion requested by the RO has not been provided as to "whether or not the currently diagnosed depression and bipolar disorder conditions as claimed are related to or caused while in active duty service." The examiner issued another addendum dated October 1, 2012. However this is prior to the receipt of the service treatment records in question so that they could not have been reviewed by the examiner. In light of the foregoing, the supplemental VA medical opinion obtained is still inadequate. Accordingly, the case is remanded for the following action: 1. Copies of the Veteran's treatment records related to treatment at the VA Hospital San Juan, Puerto Rico from June 1976 must be requested. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above records are obtained to the extent available, the RO must obtain a supplemental medical opinion, from the VA examiner who conducted the October 2008 examination, if available, to determine the etiology of the Veteran's current psychiatric disorder. If the October 2008 VA examiner is not available, the record must be reviewed by another appropriate VA examiner. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records reviewed. Following a review of the evidence of record, the examiner must provide an opinion as to whether the currently diagnosed depression and bipolar disorders are related to the Veteran's active duty service. In rendering this opinion, the examiner must consider and specifically mention the February 1973 service treatment records showing that the Veteran was hospitalized for two days with an initial diagnosis of psychotic depression and released with a diagnosis of depressive neurosis; and the September 1975 service treatment record showing an assessment of anxiety. The examiner is also asked to clarify the relationship between the Veteran's currently diagnosed depressive condition and chronic alcohol dependence and explain the significance of the statement that "[a]lthough the alcohol is depressive substance, but veteran is in abstinence since 3 month ago is not caused by or a result of depression and bipolar condition[,]" as written in the October 2008 VA examination report. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The medical report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. After completing the above actions, and any other development as may be indicated, the RO must readjudicate the Veteran's claims on appeal, taking into consideration any newly acquired evidence. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).