Citation Nr: 1332406 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-11 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served as a member of the Rhode Island Army National Guard from August 1979 to February 1985, from April 1987 to February 1988, and from September 1993 to July 1999. As service connection is in effect for residuals of a head injury, the claimant satisfies the regulatory definition of the term "Veteran." See 38 U.S.C.A. § 101 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.6 (2013) This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in relevant part, denied the benefits sought on appeal. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in May 2008. A transcript of that hearing is of record. In May 2011, the Board notified the Veteran that the VLJ who presided over his hearing was no longer employed at the Board, and that he was entitled to a new hearing before a different VLJ, if he so desired. The Veteran declined the opportunity to appear at a new hearing. The Board previously remanded the Veteran's claims on appeal in October 2008, August 2011, and December 2012, for further evidentiary development. In the December 2012 decision, the Board additionally denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. A motion filed by the Veteran for reconsideration of the Board's denial of those claims was denied in September 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, another remand is required with respect to the claims on appeal. Although the Board sincerely regrets the further delay, it is necessary to pursue additional development to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. Low Back Disability With respect to the low back disability claim, the Veteran has contended that he suffered a back injury while riding in the back of a five-ton truck in 1979. This occurred while he was stationed at Fort Drum, New York, during his National Guard service, presumably during a period of active duty for training (ACDUTRA). While attempts to obtain service treatment records associated with the Veteran's claimed in-service back injury and his reported in-service treatment, including attempts to obtain such records directly from the Fort Drum Freedom of Information Act Office, have proved unfruitful, records confirming the Veteran's periods of ACDUTRA and inactive duty training (IDT) surrounding the time of his claimed injury in 1979 do not appear to have been requested. Thus, this claim must be remanded in order to obtain these records. Additionally, the Veteran testified during his May 2008 hearing that he had received recent private treatment for his claimed back disability from North Crossroads Rhode Island Hospital (Crossroads). He reported that such treatment included multiple MRIs and other treatment rendered approximately every nine months. While an October 2008 MRI report of the Veteran's spine conducted at Rhode Island Hospital is of record, it does not appear that additional private treatment records dated since November 2006, reflecting treatment of the Veteran's low back, have been obtained from Crossroads. VA regulations require that reasonable efforts be made to obtain identified private treatment records. 38 C.F.R. § 3.159(c) (2013). The record contains the Veteran's contentions regarding his in-service back injury, and it contains evidence of current treatment for a back disability. There is, however, insufficient evidence to properly adjudicate the Veteran's claim. The duty to assist requires providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, on remand the Veteran should be afforded a proper VA examination to determine the nature and etiology of any currently diagnosed low back disability. PTSD With respect to the claimed PTSD, the Veteran was afforded a VA mental health examination in February 2013, per the Board's prior December 2012 remand directives. The examiner determined that the Veteran did not meet the diagnostic criteria for PTSD. The examiner did, on the other hand, diagnose panic disorder with agoraphobia and major depressive disorder. However, an April 2010 VA examination diagnosed bipolar disorder. While this was not diagnosed again in February 2013, the examiner must still discuss whether, at any time during the appeal period, a valid diagnosis of bipolar disorder existed and if so, whether it is at least as likely as not due to the Veteran's service. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Moreover, the Board observes that a diagnosis of PTSD has been made multiple times during the Veteran's psychiatric treatment history, including during a prior April 2010 VA examination. The February 2013 VA examiner failed to reconcile a finding of a lack of a PTSD diagnosis with prior evidence of record of a PTSD diagnosis. See 38 C.F.R. § 4.2 (2013) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Thus, an addendum to the February 2013 VA examination report is needed to address these deficiencies. Accordingly, the case is REMANDED for the following action: 1. After obtaining any required authorization from the Veteran, request copies of his treatment records from Crossroads Rhode Island dated since November 2006. Obtain any additional outstanding treatment records from any other private healthcare provider that has provided treatment for the Veteran's claimed disabilities on appeal. Ask the Veteran to submit copies of any relevant treatment records in his possession, and inform him that he may obtain and submit identified records himself. All reasonable attempts should be made to obtain identified records. If any identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) ( 2013). 2. Verify all periods of the Veteran's National Guard service during the year 1979, to include all periods of ACDUTRA and IDT through any and all appropriate channels, including the Veteran's assigned unit(s). Each of the agencies/units/organizations contacted should be asked to confirm and provide the following information: (a) The specific dates (not retirement points) for all of the Veteran's periods of ACDUTRA and IDT during such National Guard service. (b) The dates in which the Veteran was paid for ACDUTRA or IDT during such National Guard service. (c) Copies of the Veteran's Leave and Earning Statements during his National Guard service. (d) Copies of all service records (STRs and SPRs) pertaining to this period of National Guard service. 3. Thereafter, schedule the Veteran for a VA orthopedic examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The VA examiner should diagnose and describe all current disabilities of the Veteran's low back found to be present, to include a prolapsed disc. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current low back disability had its clinical onset during a period of National Guard training, to include as a result of the claimed incident when the Veteran injured his spine while riding in the back of a five-ton truck during a period of training in 1979. If a current back disorder is attributed to an injury incurred during a period of ACDUTRA or IDT, the specific injury and period of such service must be identified. 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 rendered. 4. Thereafter, return the Veteran's claims file to the VA examiner who conducted his February 2013 psychiatric examination for further comment on the etiology of the claimed psychiatric disorder. Specifically, the examiner must state whether, at any time since April 2006 it is at least as likely as not that the Veteran has had bipolar disorder, panic disorder with agoraphobia, or major depressive disorder. If so, the examiner should state whether it is at least as likely as not due to or the result of the Veteran's service, to include as a result of the head injury sustained by the Veteran when he was hit in the head with a wrench while conducting repairs during a period of training in March 1997. The examiner must also indicate whether it is at least as likely as not that, at any point since April 2006, the Veteran has carried a valid diagnosis of PTSD. If so, the stressor upon which such diagnosis is based should be identified. If the VA examiner disagrees with any prior psychiatric diagnosis made during the pendency of the Veteran's appeal, the examiner should reconcile this finding with evidence of any such prior diagnosis of record. If, for whatever reason, this examiner is no longer available or able to provide additional comment, then obtain additional comment from another equally qualified examiner. In either eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should indicate that this has been accomplished. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall, supra. 6. Finally, readjudicate the Veteran's current service connection claims on appeal. If either claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. 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). 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. 2013). _________________________________________________ ERIC S. LEBOFF 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. See 38 C.F.R. § 20.1100(b) (2013).