Citation Nr: 1330624 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 07-28 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder. 3. Entitlement to service connection for a bilateral hip disability. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to service connection for a left ankle disability. 6. Entitlement to service connection for a lumbar spine disability. 7. Entitlement to service connection for residuals of a pelvic injury with scar and right leg shortening. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 2001 to February 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In a decision in November 2011, the Board denied service connection for a bilateral hearing loss disability and remanded the remaining claims. The remaining claims are again REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND On the claim of service connection for headaches, in September 2012, a VA examiner concluded that it was less likely than not that the Veteran's headaches were related to service. The VA examiner did not render an opinion on whether the headaches were caused by or aggravated by service-connected posttraumatic stress disorder or service-connected hypertension. As the evidence of record is insufficient to decide the applicable theories of service connection, further development under the duty to assist is needed. On the claim of service connection for a psychiatric disorder other than posttraumatic stress disorder, on VA examination in December 2011, the VA examiner stated that the Veteran had more than one psychiatric disorder, but the VA examiner did not render an opinion on whether any other psychiatric disorder was related to service. As the evidence of record is insufficient to decide the claim, additional development under the duty to assist is needed. On the claims of service connection for a bilateral hip disability, a bilateral knee disability, a left ankle disability, a disability of the lumbar spine disability, and residuals of a pelvic injury with scar and right leg shortening, the claims have been denied, because the disabilities, sustained in a vehicle accident in California, were the result of the Veteran's willful misconduct, as he was driving under the influence of alcohol, when the accident occurred. In July 2011, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) on the question of the level of the Veteran's blood alcohol at the time of the accident as the blood alcohol level was determined from a blood sample taken about seven and half hours after the accident. In the opinion, the VHA expert concluded that the blood alcohol level at the time of the accident was greater than the legal limit for driving. The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument. In response in September 2011, the Veteran submitted additional evidence, consisting of a medical opinion, and did not waive initial consideration of the evidence by the RO. In its remand in November 2011, the Board directed that the additional evidence be considered by the RO. In the supplemental statement of the case in October 2012, the RO did not address the medical opinion, which concluded that it was possible that at the time of the accident in service the Veteran was driving with a blood alcohol level under the legal limit of the State of California. As the Board's directive was not complied with the claims must be remanded. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that headaches are caused by or aggravated by the service-connected posttraumatic stress disorder or service-connected hypertension? In this context, the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of headaches as a result of a service-connected disability beyond the natural clinical course of headaches as contrasted to a temporary worsening of symptoms. The Veteran's file must be made available to the VA examiner for review. 2. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that depressive disorder, alcohol dependence, or anxiety disorder had onset in service or that alcohol dependence is a manifestation of service-connected posttraumatic stress disorder? The Veteran's file must be made available to the VA examiner for review. 3. After the above development adjudicate the claim of service connection, including secondary service connection, for headaches and the claim of service connection for a psychiatric disorder other than service-connected posttraumatic stress disorder. Also consider the additional medical opinion, pertaining to the question of willful misconduct, namely, the conclusion that it was possible that at the time of the accident in service the Veteran was driving with a blood alcohol level under the legal limit of the State of California. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ George E. Guido Jr. 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).