Citation Nr: 1332118 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-08 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to a shell fragment wound of the left thigh. 2. Entitlement to service connection for a psychiatric disability. 3. Entitlement to an increased rating for a shell fragment wound of the left thigh, currently rated as nocompensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1971. This case is before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues have been recharacterized as indicated on the title page to comport with the evidence of record. 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 seeks a higher compensable rating for service-connected shell fragment wound of the left thigh, as well as service connection for a back disorder, to include as secondary to the shell fragment wound of the left thigh, and a psychiatric disability, to include PTSD. He asserts that the shell fragment wound of the left thigh is worse since the most recent VA examination in April 2010. In light of the Veteran's statements and the evidence, the claim must be remanded for a current examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). With respect to service connection for a low back disability, the October 2008 VA examination report reflects lumbar spine degenerative changes and disc space narrowing. Although the examiner stated that it would not be expected to result in abnormal weight bearing on the lumbar spine, noting only a slightly antalgic gait, in view of the Veteran's assertions with respect to the increased severity of his shell fragment wound of the left thigh, an opinion must be obtained as to any current aggravation of the claimed low back disorder. As for service connection for a psychiatric disorder, the record reflects diagnoses to include major depressive disorder and anxiety disorder. The October 2008 VA examiner determined that the Veteran does not have PTSD because he did not meet "Criterion B" of the diagnosis. In this respect, it was noted that the Veteran reported very little tendency to re-experience negative incidents by way of intrusive memories or nightmares or other strong emotional or physical reaction to things that remind him of experiences during service. A February 2010 VA mental health treatment record reflects the Veteran's report of having been experiencing frequent dreams and/or nightmares associated with his traumatic experiences during service in Vietnam, to include having witnessed other soldiers being killed. In view of the more recent evidence, the Veteran must be afforded a VA examination for an opinion with respect to whether he has any psychiatric disability, to include PTSD, related to service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA left thigh examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner must describe the severity of the Veteran's service-connected shell fragment wound of the left thigh. The examiner must also comment on whether any diagnosed back disability is aggravated by the service-connected left thigh shell fragment wound, and if so, to the extent possible, the examiner is to provide an opinion as to the approximate baseline level of severity of the back disability before the onset of aggravation. "Aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder present, to include PTSD, major depressive disorder and anxiety disorder, is related to service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case 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). These 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ RONALD W. SCHOLZ 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).