Citation Nr: 1324145 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-09 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a neck injury. 2. Entitlement to service connection for a shoulder injury. 3. Entitlement to service connection for a back injury. 4. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Friend ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from January 1977 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the Veteran's above stated claims. A hearing before the undersigned Acting Veterans Law Judge at the RO was held in December 2012. 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). The Board also points out that it is somewhat unclear from the record as to whether the Veteran is intending to file a notice of disagreement with his denial of service connection for a neurological disorder/neuropathy. As such, this issue is referred to the RO for further 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 Regretfully, the Board finds that development is warranted before a decision is rendered in this case. As to the issue of the Veteran's claimed PTSD, the Board notes that there is some conflict in the medical evidence of record as to the question of whether the Veteran has PTSD. On the one hand, the Veteran's most recent VA examination report from September 2011 found that the Veteran did not have a diagnosis of PTSD, but had a psychosis. That examiner did not offer any opinion as to whether the veteran's psychosis was incurred in, or aggravated by, service. However, another VA physician, in both letters to the RO, and more recent VA treatment records, has stated his belief that the Veteran has a diagnosis of PTSD, related to incidents both in service and prior to service. In light of the conflicting medical evidence of record, the Board finds it prudent to request another more thorough medical opinion as to the question of whether the Veteran currently has a diagnosis of PTSD related to service, considering all evidence of record, including the conflicting medical opinions of record. The Board finds that the examiner should also offer an opinion as to whether ANY psychiatric disability diagnosed, whether PTSD or not, is related to service. Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) As to the issues of the Veteran's claimed shoulder, low back, and neck disabilities, it appears that that the Veteran is claiming that all of these disabilities are related, at least in part, to a low back strain the Veteran incurred in service. Service records show that the Veteran was found to have a low back strain in May 1978, which was noted to be almost completely recovered in an August 1978 service record. There are no further medical records showing complaints of, or treatment for back, neck, or shoulder disabilities, until 2005, many years after the Veteran's separation from service. However, noteworthy is a May 1978 service record of back X-ray which found the Veteran to have lordosis with spondylolisthesis. On VA examination in May 2010, the Veteran was again found to have spondylolisthesis. The examiner indicated that it was less likely as not that the Veteran's low back condition was caused by or incurred in service, and the examiner noted that spondylolisthesis is a congenital condition. However, the examiner failed to address the question of aggravation. As this condition existed in service, and still exists, the Board finds that an opinion must be offered as all potential theories of entitlement, to include the question of aggravation. Further, as the conditions of neck and shoulder pain appear to be related to this disability, the Board finds that the question of whether these disabilities were incurred in, or aggravated by, service, are intertwined with the issue of the Veteran's service-connected back disability, and should also therefore be remanded for further development. See 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 issues have been considered). Accordingly, these claims are 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. Ask the Veteran to submit any relevant private treatment records or an authorization form that would allow VA to request the records on his behalf, pertaining to his claimed shoulder, back, neck, or PTSD/psychiatric disabilities. If, after making reasonable efforts to obtain named records the RO is unable to secure 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 claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After the above steps are complete, schedule the Veteran for a VA psychiatric examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The examiner should answer the following questions: a. Does the Veteran have a current psychiatric disorder, and/or PTSD? b. Please provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed psychiatric disorder, including PTSD, had its onset in, or is otherwise related to, the Veteran's active duty service. Please explain the reasons behind any conclusions reached. The term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The examiner should specifically comment on the prior VA examination conclusions that the Veteran does not have PTSD, as well as the letters from a VA physician indicating that the Veteran does have PTSD related to service, in providing any opinions. 3. Then, schedule the Veteran for a VA examination for his claimed shoulder, low back, and neck disabilities. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The examiner should answer the following questions: a. Does the Veteran have any shoulder, low back, or neck disabilities? b. Please provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed shoulder, neck, or low back disability, including spondylolisthesis, had its onset in, or is otherwise related to the Veteran's active duty service. The examiner should further address whether the congenital spondylolisthesis underwent an aggravation (i.e., worsening beyond natural progression) during service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The examiner should specifically comment on the findings in the Veteran's May 2010 VA examination report, in providing any opinions. 4. After the requested examinations have been completed, review the examination reports to ensure that they are in complete compliance with the directives of this remand. The examination report(s) should be returned to the examiner(s) if it is deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response before the case is returned to the Board. The Veteran 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 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). _________________________________________________ A. C. MACKENZIE Acting 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).