Citation Nr: 1326747 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-28 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, depression and mood disorder, to include as secondary to the service-connected spine disability and associated residuals. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1976, and from September 1976 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran did not appeal a July 1996 rating decision which denied service connection for depression. Consequently, that decision became final. However, in December 2012 the Board issued a decision that determined that new and material evidence had been submitted, and reopened the claim for service connection for depression. The December 2012 Board decision remanded the Veteran's claim for service connection for an acquired psychiatric disorder and his claim for service connection for left ear hearing loss. A May 2013 rating decision granted the Veteran service connection for bilateral hearing loss. Consequently, only the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, depression and mood disorder, to include as secondary to the service-connected disability, is currently in appellate status before the Board. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. 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 The Veteran claims that he is entitled to service connection for an acquired psychiatric disorder. He has asserted that he has PTSD due to service. The Board notes that the RO has conceded the Veteran's claimed stressor, but has found that the Veteran does not actually have PTSD. The Veteran has also asserted that he has depression secondary to pain from his service-connected spine disabilities. The Veteran has service connection and a 40 percent ratting in effect for degenerative disc disease of the lumbar spine. He also has service connection and 10 percent ratings in effect for radiculopathy of each lower extremity. Multiple VA outpatient records reveal complaints of back pain. VA treatment records dated in July 2006 note that the Veteran was recently examined by a private psychiatrist. The private psychiatric treatment records are not of record and no specific attempt has been made to obtain these records. The Veteran's claim must be remanded in order that an attempt may be made to obtain copies of his private psychiatric treatment. 38 C.F.R. § 3.159(c)(1). The Veteran was provided a VA examination by a VA psychologist in January 2013, who provided a diagnosis of caffeine-induced anxiety disorder. The Board notes that the treatment records from the Veteran's private family physician show complaints of depression since April 2008, and treatment with Zoloft since June 2008. The January 2013 VA examiner specifically noted that he had not reviewed the Veteran's private treatment records. The Board finds that a new VA medical opinion that takes into consideration the Veteran's private medical records should be obtained. See 38 C.F.R. § 3.159(c)(4). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board notes that although the Veteran was sent a VCAA letter regarding service connection in June 2008, he has not been provided a VCAA letter which informed him of the information and evidence necessary to substantiate a claim for service connection on a secondary basis. The Veteran's statements, including on his notice of disagreement and on his substantive appeal, fail to show that the Veteran had knowledge of the information and evidence necessary to substantiate a claim for service connection on a secondary basis. The Board further notes that the file contains no statements from the Veteran's service representative regarding secondary service connection and no indication that the Veteran's representative has made the Veteran aware of the information and evidence necessary to substantiate a claim for service connection on a secondary basis. Consequently, the Veteran should be provided corrected VCAA notice which includes an explanation as to the information or evidence needed to establish a claim for service connection on a secondary basis. The Veteran's most recent VA treatment records that have been considered are dated November 2, 2012. The Veteran's updated VA treatment records should be obtained. The Veteran's most recent treatment records from his family physician are dated March 20, 2013. The Veteran's updated private treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided an appropriate VCAA notice letter in regard to his service connection claim. The notice letter should include an explanation as to the information or evidence needed to establish a claim for service connection on a secondary basis. 2. Write to the Veteran and ask that he sign an authorization so that VA can request a copy of the examination report from the private psychiatrist who examined him in June 2006 or thereabouts. 3. Request copies of the Veteran's VA medical records dated from November 3, 2013 to present. 4. After obtaining the necessary authorization, request copies of the Veteran's treatment records from Dr. C. Minrath, dated from March 21, 2013 to present. 5. When the above actions have been completed, afford the Veteran a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorders present. The claims folder should be made available to the examiner and be reviewed in conjunction with the examination. The examiner should indicate review of the Veteran's private treatment records. The examiner should opine whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's service-connected disabilities cause or aggravate any psychiatric disabilities found. In determining whether or not there is aggravation, the relevant matter to discuss is whether there has been any increase in severity of any psychiatric disabilities, that is proximately due to or the result of the service-connected lumbar spine disability or any other service-connected disability, and not due to the natural progress of any acquired psychiatric disorder. 6. After completing the above actions, and any other development as may be indicated, readjudicate the Veteran's claim. Thereafter, if the benefit sought on appeal is not granted, provide the Veteran and his representative a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. 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). _________________________________________________ BETHANY L. BUCK 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).