Citation Nr: 1339232 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-34 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a psychiatric disability, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to July 1954. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). The appeal was remanded to the agency of original jurisdiction (AOJ) in May 2011, October 2011, and May 2013. It again returns to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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. REMAND The Board determines that yet another remand is necessary in this case. Specifically, the Board's review of the most recent VA examination from July 2013 reveals that there are outstanding, relevant VA treatment records that have not been associated with the claims file. The VA examiner refers to the Veteran's psychiatric treatment in August 2012 and November 2012, but the most recent VA treatment note of record is dated in February 2011. Moreover, from the VA examiner's comments, these records are particularly salient to the Board's determination of current diagnosis for the Veteran's acquired psychiatric disorder. Therefore, the case must be remanded so that these outstanding VA treatment records may be obtained. Moreover, the Board determines that another VA opinion as to a relationship between the Veteran's acquired psychiatric disorder and his service-connected bilateral hearing loss and tinnitus is necessary. An opinion in this regard was requested in 2011, and the June 2011 VA examiner explained that the Veteran's diagnosis of Depressive Disorder due to General Medical Condition (GMC) referred to nonservice-connected disorders involving the Veteran's spine. The examiner did not, however, provide an opinion as to whether the Veteran's depressive disorder was caused by, or was made chronically worse beyond the natural progress of the condition by, the Veteran's service connected bilateral hearing loss and/or tinnitus. Therefore, another opinion was requested. However, while the examiner then rendered the opinion that the Veteran's Major Depressive Disorder is not caused by or aggravated by tinnitus or hearing loss, the examiner provided no rationale for this opinion. Thus, the opinion was inadequate. In September 2012, the Board requested an opinion from a specialist within the Veterans Health Administration. See 38 C.F.R. § 20 901 (2013). However, the specialist also did not provide a rationale for her opinion regarding a relationship between the Veteran's bilateral hearing loss and tinnitus and his acquired psychiatric disorder. Therefore, the appeal was again remanded so that another opinion could be obtained. The subsequent August 2013 opinion merely stated that the Veteran has diagnoses of cervical radiculopathy, spinal stenosis, and "severe copd" and that these disorders are very seriously limiting and are the causative factor for the Depressive Disorder due to GMC. The examiner indicated that the Veteran's tinnitus and hearing loss do not cause nor aggravate the Depression due to GMC. Again, the examiner did not provide a rationale for the opinion except to note that tinnitus can be frustrating and that the Veteran had not exhibited a pattern of visits to audiologists to assist with establishing causation of the depressive disorder. The examiner did identify the Veteran's physical disabilities that qualify as GMC in this case; however, he did not clearly explain why neither the tinnitus nor the bilateral hearing loss is such a general medical conditions for this Veteran. The Board observes that the Veteran's bilateral hearing loss was increased to 40 percent disabling in a September 2012 rating decision. Thus, the Board finds that another VA opinion on the question of causation and aggravation of the Veteran's acquired psychiatric disorder by his service-connected audiological disabilities should be obtained. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims file all VA treatment records for the Veteran from the VA Nebraska-Western Iowa Health Care System, including any associated outpatient clinics. All requests and responses, positive and negative, must be documented in the claims file. 2. Request clarification of the August 2013 VA opinion by that examiner or an equally qualified VA examiner. Another clinical examination is not necessary unless determined to be so by the RO or VA examiner. The VBMS claims folder must be available and reviewed by the examiner, and the examiner must identify the records reviewed. The examiner should offer an opinion as to the etiology of the Veteran's Depressive Disorder due to GMC as it regards the Veteran's service-connected bilateral hearing loss and tinnitus in responding to the following: Is at least as likely as not (a 50 percent probability or greater) that any currently demonstrated psychiatric disability was caused or aggravated by a service-connected disability? The Veteran's service-connected disabilities are currently bilateral hearing loss, rated as 40 percent disabling, and tinnitus, rated as 10 percent disabling. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached citing the objective medical findings. If the opinion is negative, the examiner must explain why, for this Veteran, his service-connected tinnitus and bilateral hearing loss are not "general medical conditions" that have a causal or aggravating impact on his depressive disorder. The examiner is further advised that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Further, the term "aggravated" means that there was an increase in disability, unless there is a specific finding that the increase in disability is due to the natural progression of the disease 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).