Citation Nr: 1332828 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-32 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, (exclusive of posttraumatic stress disorder (PTSD)). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active military service from April 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for PTSD and paranoid schizophrenia because the evidence submitted was not new and material. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2010 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims folder. At the hearing, the Veteran withdrew from appellate review the issue of entitlement to service connection for PTSD. In April 2011, the Board issued a decision, denying the Veteran's claim of entitlement to service connection for a psychiatric disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2011, the Court granted a joint motion for remand filed by the parties (the Veteran and VA), and remanded the case to the Board for further action consistent with the joint motion. Additionally, in the April 2011 decision, the Board, remanded the issues of entitlement to increased ratings for bilateral hearing loss disability and tinnitus and to a TDIU, for additional development. After review of the claims folder, the Veteran's Virtual VA efolder, and VBMS (Veterans Benefits Management System), it appears that action on those issues has not been completed by the RO, as there is no indication that any additional rating decisions or supplemental statements of the case (SSOCs) have been issued. Thus, the Board has no jurisdiction to review those issues at the present time. In March 2013, the Board remanded this matter for further development, to include obtaining outstanding service personnel records and outstanding VA treatment records, and scheduling the Veteran for a VA examination. Review of the record shows that such actions were accomplished; thus, the Board finds that there was substantial compliance with the March 2013 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes, however, that with regard to the claim for service connection for an acquired psychiatric disorder, this claim has been primarily considered as a direct service connection claim, by the RO, to include in the last SSOC dated in July 2013. However, as explained below, the Board finds the claim for service connection for an acquired psychiatric disorder must also be considered as secondary to the service-connected bilateral hearing loss. In that regard, the Board notes that the Veteran has recently contended that his psychiatric disability is related to his chronic stomach pain and hearing loss. (Service connection has not been established for a stomach disorder.) All potential theories of entitlement to a benefit under the law and regulations implicated by the record must be considered. Floyd v. Brown, 9 Vet. App. 88 (1996). This new theory of entitlement does not constitute a new claim and must be considered as part of the entire claim for service connection for an acquired psychiatric disorder. Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). For the Board to only address direct service connection at this time would amount to piecemeal adjudication, which is to be avoided. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 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 on his part. REMAND Unfortunately, a remand is required with respect to the issue on appeal - entitlement to service connection for an acquired psychiatric disability, to include paranoid schizophrenia (exclusive of PTSD). In that regard, the Board notes that the issue of entitlement to secondary service connection for an acquired psychiatric disability has yet to be addressed. On the VA examination in July 2013, the diagnosis was major depressive disorder, and the examiner opined that it was less likely than not that any acquired psychiatric disorder, present during the pendency of this claim, was related to the Veteran's active service. The Veteran contended that his mental health difficulties were related to chronic stomach pain and hearing loss. Thereafter, in the appellant's post-remand brief, dated in August 2013, the Veteran's representative contended, on his behalf, that service connection could be established for his depressive disorder secondary to his service-connected hearing loss. It was noted that the Veteran requested consideration of 38 C.F.R. § 3.310(a), and that he maintained he had submitted adequate medical evidence to support his claim, and that the preponderance of evidence was in his favor or, at the very least, in relative equipoise, and that service connection should be established. With regard to the secondary service connection claim, the Board notes that under 38 C.F.R. § 3.310(a), any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a)(b). That regulation permits service connection not only for disability caused by service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet.App. 439, 448 (1995). A review of the record clearly shows that the Veteran has a variously diagnosed acquired psychiatric disorder. On the VA examination in July 2013, the diagnosis was major depressive disorder. The record reflects that service connection has been granted for bilateral hearing loss, and a 50 percent rating has been assigned, effective from August 5, 2005; a 10 percent rating was previously in effect, from December 10, 2004 to August 4, 2005. Service connection is also in effect for tinnitus, evaluated as 10 percent disabling, effective August 5, 2005. Thus, on remand, a supplemental VA opinion should be obtained on the secondary service connection claim. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is properly notified of what evidence is needed to support his claim for secondary service connection under 38 C.F.R. § 3.310. 2. Following completion of the above, forward the claims folder to the VA DBQ examiner from July 2013 for a supplemental opinion. If the original VA examiner (from July 2013) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran may be conducted. The examiner should be asked to opine whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability present during the pendency of this claim, (a) was caused, or (b) is aggravated (permanently increased in severity beyond the natural progression) by a service-connected disability, to include the Veteran's service-connected bilateral hearing loss and tinnitus. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation due to service-connected disability, consistent with 38 C.F.R. § 3.310. The examiner should provide supporting rationale for all opinions rendered. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, readjudicate the claim. If the benefit remains denied, the Veteran and his representative should be provided an SSOC and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). _________________________________________________ BARBARA B. COPELAND 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).