Citation Nr: 1333419 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-01 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a sinus condition. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for stomach problems, to include as secondary to service-connected disabilities. 4. Entitlement to service connection for depression, to include as secondary to service-connected disabilities. 5. Entitlement to service connection for a cyst on groin. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had military service from August 1983 to August 2003. The matters come before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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 Additional development is necessary prior to further disposition of the Veteran's claims. In a September 2013 brief, the Veteran's representative argues that all treatment records, including complete service treatment records, have not been obtained and further steps should be taken. The representative notes that "the bulk of the [V]eteran's treatment has been through Tricare at Luke A[ir] F[orce] B[ase]." There is a notation in the service treatment records that Luke AFB records are unavailable; however, there is no indication whether there are Tricare records from Luke AFB dated after service. A November 2010 VA treatment record includes a reference to current treatment through Tricare but does not specify the facility. The January 2009 Statement of the Case refers to records from Brookwood Medical Center, dated in May 2007. The only records from that facility associated with the record are dated in May 2002 and were received in April 2007. It is unclear whether the reference to "May 2007" is a typographical error or there are additional records from Brookwood Medical Center. On remand, steps should be taken to determine whether there are any outstanding treatment records from Tricare, from Luke AFB or any other facility. Treatment records from all medical providers must be obtained. The Veteran submitted statements from Dr. T.F. and Dr. T.C. in support of his claims and the April 2012 VA psychiatric examination refers to treatment from Dr. M. at Flowers Hospital. There are no accompanying medical records. The record includes several VA audiological examinations; however, they are inadequate. The April 2012 examiner opined that the Veteran had a pre-existing left ear hearing loss that was not "worsened" by service. The available service treatment records include a barely legible enlistment examination. The audiometric findings are unclear, but the examiner specifically noted "[decreased] Hearing, N[ot] C[onsidered] D[isabling]" and assigned a "2" in the physical profile for hearing. "1" reflects a high level of fitness. The April 2012 VA examiner specifically referred to a pre-existing left ear hearing loss, but the service treatment records do not appear to make that distinction. The Veteran's representative argues that outstanding service treatment records may include additional in-service audiograms. Given the need to look for additional treatment records, both in-service and after, and the inadequate VA examination, another opinion is required. In a January 2007 statement, the Veteran stated that he had stomach problems caused by medications he takes for his service-connected back disability. A medical opinion addressing that connection should be obtained on remand. The Veteran filed his claim in January 2007 and he suffered a traumatic brain injury (TBI) in 2009. Some of the medical evidence relates his current psychiatric problems to that accident; however, there is evidence that he had problems prior to the injury and further evidence that his problems after the injury are, in part, related to service-connected disabilities. The Veteran's representative argues that the Veteran's duties as a recruiter in service caused his depression. There are references to treatment in service. An April 2001 mental health note includes diagnoses of Rule out Major Depressive Disorder and Adjustment Disorder with Depressed Mood and the assessment that the Veteran was not currently suited for recruiting duties. In a May 2013 statement, Dr. T.C. related the Veteran's current depression to pain related to his service-connected back disability. The April 2012 VA examination is inadequate because the examiner did not consider the Veteran's complaints prior to the 2009 TBI. Given the length of the appeal period and the particular circumstances of this case, it is possible the nature of the Veteran's psychiatric diagnoses changed over the course of the appeal; a medical opinion is required to decide the case. 38 C.F.R. § 3.159(c)(4) (2013). An April 2012 VA examination report indicates that the Veteran began receiving Social Security Administration (SSA) Disability benefits in 2009. The claims file does not contain records related to the Veteran's SSA benefits. They should be obtained on remand. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: 1. Make another attempt to secure the Veteran's complete service treatment records and records of any treatment obtained through Tricare (via Brookwood Medical Center or Luke AFB), both in-service and after. 2. Obtain the names and addresses of all medical care providers who treated the Veteran for the claimed disorders since service. After securing any necessary authorization from the Veteran, obtain all identified treatment records, as well as any available VA treatment records. Records should be obtained from Dr. T.C., Dr. T.F. and Dr. M. (Flowers Hospital). All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 3. Obtain all available records from the Social Security Administration pertaining to the Veteran's claim as well as medical records relied upon concerning that claim. 4. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of the claimed hearing disability. The claims folder and all appropriate medical records must be made available to the examiner for review. Based on the examination and review of the record, the examiner should address the following: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had a hearing disability (in either or both ears) that existed prior to his entry onto active duty? (b) If the answer is yes, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the preexisting hearing disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's hearing disability had its onset in service? 5. Schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of his psychiatric disability. The claims folder and all appropriate medical records must be made available to the examiner for review. Based on the examination and review of the record, the examiner should answer the following: a) What is the current nature of the Veteran's psychiatric disability? b) Is it at least as likely as not that at any time since January 2007 the Veteran had a psychiatric disability that had its onset in military service or is otherwise related to service? Consider the Veteran's duties as a recruiter and his in-service complaints (April 2001 record). c) Is it at least as likely as not that at any time since January 2007 the Veteran had a psychiatric disability that is proximately due to, the result of, or aggravated by the Veteran's service-connected degenerative disc disease, status post laminectomy L5-S1 disability? A complete rationale should be provided for all expressed opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. Schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any stomach disability. The claims folder and all appropriate medical records must be made available to the examiner for review. Based on the examination and review of the record, the examiner should answer the following: Based on the examination and review of the record, the examiner should address the following: (a) What is the current nature of the Veteran's stomach disability? (b) Is it at least as likely as not that any identified stomach disability had its onset in military service or is otherwise related to service? (c) If not, is it at least as likely as not that any identified stomach disability is proximately due to, the result of, or aggravated by the service-connected degenerative disc disease, status post laminectomy L5-S1? The examiner should address the affects, if any, of over the counter medications (such as Motrin) and any other treatments used by the Veteran for his service-connected degenerative disc disease, status post laminectomy L5-S1, on any diagnosed stomach disability. See the January 2012 VA Back Examination Report. (d) If not, is it at least as likely as not that any identified disorder is proximately due to, the result of, or aggravated by his currently diagnosed depression? A complete rationale should be provided for all expressed opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 7. Then, after completing the development requested above and any further development deemed necessary, readjudicate the issues on appeal. If any benefits sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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). _________________________________________________ M. E. LARKIN 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) (2013).