Citation Nr: 1341679 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 05-35 901A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a nervous disorder. 2. Entitlement to service connection for a back disorder (diagnosed as a cervical strain, osteoporosis and spondylosis). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran had active service from April 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, denying the claims currently on appeal. The appeal was last before the Board in August 2012. At that time, the Board remanded for additional development. As discussed below, the Board's current review of the claims file reveals that an additional remand is required. 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 Unfortunately, in the Board's judgment, an additional remand is required. First, upon remand, the Agency of Original Jurisdiction (AOJ) must seek additional private records. The AOJ should seek additional records (some are already of file) from Dr. D.S.C. (initials used to protect privacy); the claims file contains a recent VA authorization form (VA Form 21-4142) received on October 19, 2012 that the AOJ can use to identify this medical provider. Next, although the claims file contains copies of the determination from the Social Security Administration (SSA) regarding disability status, the claims file does not contain any underlying records. Upon remand, the AOJ should seek these records. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Next, pursuant to the previously Board remand, the Veteran was provided VA examinations in September 2012 in which the examiners addressed the questions of etiology. Regarding the claim for service connection for a psychiatric disability, the Board finds that no additional development is required regarding the portion of the claim pertaining to PTSD. Regarding other diagnosis, an anxiety disorder, a remand is required as the September 2012 opinion did not address direct service connection nor provide an opinion regarding aggravation by the service-connected hearing loss/tinnitus (an instead only addressed whether the service-connected disability caused the psychiatric disability). See 38 C.F.R. § 3.310 (2013); Stegall v. West, 11 Vet. App. 268 (1998). Regarding the claim for a back disorder (which, here, includes consideration of the cervical spine), review of the September 2012 opinion reveals that the examiner based the negative opinion on the lack of diagnosed disability in service or the year after. In the prior Board remand, the Board found that the opinion evidence of record was inadequate based on the failure to consider lay evidence. As the new obtained opinion again failed to adequately address lay evidence, the AOJ must schedule another examination to allow a different examiner to address the questions in appellate status, to include full review of the Veteran's lay evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The AOJ must ensure that the obtained opinion addresses the lay evidence. Lastly, the AOJ has associated VA treatment records with the Veteran's Virtual VA file from the San Juan VAMC dated through September 3, 2013. Upon remand, the AOJ should obtain any outstanding San Juan VAMC records dated after September 3, 2013. 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain the outstanding San Juan VAMC records dated after September 3, 2013. 2. With any needed assistance from the Veteran, obtain relevant records from SSA, to include the underlying medical records used in making a disability determination. 3. With any needed assistance from the Veteran, obtain outstanding records from Dr. D.S.C. (initials used to protect privacy); the claims file contains an October 19, 2012 VA Form 21-4142 that can be used to identify this medical provider. 4. Obtain a VA medical addendum opinion, to be completed by the examiner who completed the September 2012 psychiatric opinion if possible, to ascertain whether diagnosed anxiety disorder was directly or secondary to the service-connected hearing loss/tinnitus. No further opinions are required regarding PTSD. If the examiner who provided the September 2012 opinion is not available, obtain the opinion from another qualified clinician. If the examiner determines that another examination of the Veteran is required in order to address the questions, such an examination should be scheduled. The examiner is requested to once again review all pertinent records associated with the claims file and offer comments and an opinion addressing the following: a) Is it at least as likely as not (50 percent or greater probability) that diagnosed anxiety disorder first manifested during the Veteran's active military service or is a result of such active military service? b) Is it at least as likely as not (50 percent or greater probability) that diagnosed anxiety disorder is aggravated by the service-connected hearing loss/tinnitus? Please provide complete rationale for any opinion provided. 5. The Veteran should be scheduled for another VA examination to evaluate the claim for service connection for a back disorder (which, in this case, encompasses disability of the cervical spine). This examination, if possible, should be provided by a different examiner than the examiner who provided the September 2012 opinion. The examiner is asked to review the evidence of record, including the December 2008 VA examination report and September 2012 VA opinion and the Veteran's lay statements regarding chronic symptomatology and offer an opinion as to whether it is at least as likely as not that the Veteran's diagnosed spine disability manifested during, or as a result of, active military service. The examiner must offer a complete rationale for all opinions provided that fully accounts for the Veteran's lay testimony. 6. Ensure compliance with the above directives, to include that the examiner who conducted the new VA back examination fully accounted for the Veteran's lay testimony. Complete any additional development indicated after this review. 7. Thereafter, readjudicate the Veteran's claims. If any claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 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). 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). _________________________________________________ MARJORIE A. AUER 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2013).