Citation Nr: 1334682 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-33 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral knees. 2. Entitlement to service connection for arthritis of the bilateral hands. 3. Entitlement to service connection for arthritis of the bilateral ankles. 4. Entitlement to service connection for arthritis of the bilateral shoulders. 5. Entitlement to service connection for arthritis of the back. 6. Entitlement to service connection for arthritis of the neck. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and L.S. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran had a hearing before the Board in August 2012 and the transcript is of record. With regard to his psychiatric claim, the Board notes the Veteran originally claimed entitlement to service connection for PTSD. The claims folder, however, reveals diagnoses for other psychiatric diagnoses, to include anxiety disorder and depression, and his claim has been appropriately recharacterized above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that is reasonably raised in the 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 Review of the claims file reveals that the Veteran underwent assessments prior to neck surgery scheduled for May 2013 at UAB Medicine University Hospital. Records regarding this treatment have not been associated with the claims file. In addition, VA treatment records indicate that the Veteran was treated at Baptist Medical Center; however, records regarding this treatment have not been associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2013). As such, on remand, after obtaining adequate authorization, attempt to obtain and associate with the claims file all treatment records regarding the Veteran from UAB Medicine University Hospital and Baptist Medical Center. Review of the claims file reveals a Social Security Administration (SSA) inquiry form that states that the Veteran had a disability onset date in May 2008 and that no disability determination was made. In addition, in a statement dated in September 2009 the Veteran reported income from Social Security. In a VA treatment note dated in December 2009 the Veteran reported that he was disabled by Social Security. In a claims form dated in June 2011 the Veteran reported not applicable to the question "[h]ave you claimed or are you receiving disability benefits from the Social Security Administration?" In addition, the Veteran did not report any income from Social Security at that time. In a VA treatment note dated in June 2012, the Veteran was noted to report that he received Social Security Disability. It is unclear whether the Veteran in receipt of benefits from SSA. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, on remand attempts must be made to obtain any SSA records regarding the Veteran. Since the claims file is being returned it should be updated to include VA treatment records regarding the Veteran compiled since January 2013. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). In January 2013 the Veteran was afforded VA medical examinations regarding the etiology of his claimed disabilities; however, the opinions rendered are inadequate. In regard to the Veteran's claims for hand and ankle disabilities, the examiner noted that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that the Veteran had fallen down the stairs in service, had a motorcycle accident in service, did not have a chronic diagnosis of the ankle or hands in service, and currently had a diagnosis of arthritis of the ankles or hands. "Therefore is less likely as not the claimed arthritis of the ankles or hands occur in or was caused by service." As the examiner did not provide rationale other than a lack of demonstration of a chronic disorder in service, the Board finds this opinion to be inadequate. In regard to the Veteran's cervical spine, the examiner noted that the Veteran reported that he claims service connection for back and neck injury with strain in service while lifting heavy equipment. The opinion rendered was that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that the Veteran did not have a chronic diagnosis of the back or neck in service and has a diagnosis of arthritis of the neck and back. "Therefore, is less likely as not the claimed arthritis of the back and neck occur in or was caused by service." As the examiner did not provide rationale other than a lack of demonstration of a chronic disorder in service, the Board finds this opinion to be inadequate. In regard to the Veteran's knees the Veteran was noted to claim service connection for a left knee injury in a motor vehicle accident and also due to falling down a flight of stairs in 1975. The Veteran was reported to have been hospitalized and on sick leave. He was placed on a profile with no walking or standing. The opinion rendered was that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was the entrance and separation examinations were normal for joints, he did not have a chronic diagnosis of the knees in service, and he had a diagnosis of arthritis of the knees. "Therefore, is . . . less likely as not the claimed arthritis of the knees and the LBKA did not occur in or was cause[d] by service." In regard to the Veteran's shoulders the Veteran was noted to report a history of shoulder pain while in service due to heavy lifting. He related arthritis to that issue in service. The opinion rendered was that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran's service entrance and separation examinations were normal for joints. He was treated in October 1974 for left shoulder pain. He did not have a chronic diagnosis of the shoulder in service. He has a diagnosis of arthritis of the shoulders, x-ray 2006. "Therefore, is . . . less likely as not the claimed arthritis of the shoulder did not occur in or was cause[d] by service." In regard to sleep apnea, the examiner rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that there is no diagnosis of sleep apnea in service and he was diagnosed with sleep apnea in February 2007 by sleep study. "Therefore is . . . less likely as not the claimed sleep apnea is did not occur in or was cause[d] by service." The opinions rendered by the examiner in regard to the Veteran's claims for knees, shoulders, and sleep apnea are internally inconsistent in that they state that it is less likely as not that the claimed conditions did not occur in or were caused by service. In addition, the examiner did not provide rationale other than a lack of demonstration of a chronic disorder in service. The examiner's reference to a "LBKA" appears to be in error as the Veteran had a total left knee replacement, not a below knee amputation. Therefore, the Board finds these opinions to be inadequate. In regard to the Veteran's claim for an acquired psychiatric disorder, the Veteran's history was noted and the Veteran was diagnosed with depressive disorder. The opinion rendered was that it would require the evaluator to resort to the use of speculation to determine if current symptomology is due to military service given the number of years that have elapsed since military service. The rationale for this opinion was indicated to be clinical interview with the Veteran, review of the records, chronology of symptoms onset, DSM IV TR criteria, and the training and experience of the clinician. Before relying on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the review of the evidence. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Further, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here the examiner indicated that an opinion could not be rendered due to the passage of time and that this was based upon clinical interview with the Veteran, review of the records, chronology of symptoms onset, DSM IV TR criteria, and the training and experience of the clinician. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board must remand the claims for the opinions to be clarified by the examiner. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain VA medical records pertaining to the Veteran that are dated since January 2013. 2. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 3. After securing the proper authorization, request treatment records regarding the Veteran UAB Medicine University Hospital and Baptist Medical Center. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 4. Thereafter, return the claims file to the examiner(s) who performed the Veteran's examinations in January 2013 so that an addendum to the earlier report may be compiled. If the examiner is unavailable or in the event the examiner determines that further examination of the Veteran is necessary, the Veteran should be scheduled for a VA medical examination(s). The entire claims file and all pertinent records must be made available to the examiner for review in conjunction with the examination. . Arthritis of Multi-Joints The examiner must list any and all diagnoses affecting the Veteran's bilateral hands, ankles, knees, shoulders, back, and neck, to include (but not limited to) arthritis and myositis. For each diagnosis rendered, the examiner must opine whether it is at least as likely as not (50 percent probability) that the diagnosis was incurred in or is otherwise attributable to the Veteran's military service in light of his MOS, in-service motorcycle accident, fall down a flight of stairs, periodic in-service treatment, and post-service treatment. Sleep Apnea The examiner is to confirm whether the Veteran has sleep apnea and, if so, whether his sleep apnea was at least as likely as not (50 percent probability) incurred in or otherwise attributable to his military service in light of his statements describing in-service symptoms. Psychiatric Disorder The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran suffers from a psychiatric disorder that is related to service in light of his in-service and post-service treatment. All the examiners are to provide a complete rationale for any opinion expressed, based on the examiners' clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiners must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After completion of the above and any other development deemed necessary, review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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) (2012).