Citation Nr: 1342586 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 05-25 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for depression, claimed as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active military service from April 1981 to April 1984. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision, by the North Little Rock, Arkansas, Regional Office (RO), which denied the Veteran's claim of service connection for depression secondary to service-connected hearing loss and tinnitus. The Veteran testified at a hearing before a Decision Review Officer (DRO) in December 2005. A transcript of that hearing has been associated with the claims folder. On December 1, 2006, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of the hearing is also of record. In a July 2007 action, the Board remanded the claim of service connection for additional development. Following the requested development, a supplemental statement of the case (SSOC) was issued in January 2010. In August 2010, the Board again remanded the claim for further evidentiary development. Following the requested development, another SSOC was issued in December 2011. The Veterans Law Judge who conducted the December 2006 hearing is no longer employed at the Board. Consequently, in a March 2010 letter, the Board advised the Veteran that it would afford him the opportunity to provide testimony before another Veterans Law Judge. He was also advised that he should respond within 30 days if he wanted another hearing and that if no response was received within the prescribed time period, the Board would assume that he did not want another hearing. The Veteran did not respond to the March 2010 letter. By a June 2012 decision, the Board denied the Veteran's claim of entitlement to service connection for depression secondary to service-connected hearing loss and tinnitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was submitted in December 2012, and the Court thereafter issued an order granting the motion. The Board's June 2012 denial of service connection for depression secondary to service-connected hearing loss and tinnitus was vacated. The matter was remanded to the Board for readjudication consistent with the motion. In July 2013, the Board remanded this claim for additional development. In its remand, the Board instructed that the Veteran be afforded a VA examination; such was performed in September 2013. In the examination report, the examiner appears to indicate that the Veteran does not have any current psychiatric disorder. The examiner concluded: Based on interview with Veteran and review of records, it is less likely than not that Veteran meets criteria for a mental condition secondary to the military. While he has been treated for mental health conditions at the VA, these conditions are not related to the military. The Board finds this opinion and, quite frankly, the entire examination report to be inadequate. First, the Board notes that it is internally inconsistent. It suggests that there is in fact no psychiatric disability, but then notes that the Veteran indeed has psychiatric conditions treated at VA but which are not related to the military. Second, the examiner does not even address the Veteran's contentions that a psychiatric disorder, namely depression, is a result of his service-connected hearing loss, tinnitus, and lumbar spine disabilities. Stating "military" as the examiner does in his opinion connotes "military service," and the opinion does not address any of the secondary service connection aspect of the claim, including whether his service-connected disabilities aggravate any psychiatric disorder. Nor does the opinion give any rationale for the service connection opinion, which is essentially conclusory. (While it may be that no opinion was provided on the secondary question because the examiner felt that the Veteran did not in fact have a psychiatric disability, it is not clear that that was the examiner's conclusion, especially given the comment regarding VA treatment for mental health conditions.) The Board specifically asked in its remand Instructions that the "Veteran's claims of embarrassment for having to wearing hearing aids and of experiencing depression because of the symptoms of service-connected disability . . . be specifically addressed." A review of the examination report does not reveal a reference to this contention. Accordingly, the Board will remand this claim in order to yet again attempt to obtain a VA opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Little Rock VA Medical Center, or any other VA medical facility that may have treated the Veteran, since November 2013 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his claimed psychiatric disorder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Thereafter, schedule the Veteran for a VA psychiatric examination with a psychiatrist to determine whether any current psychiatric disorder is related to service or his service-connected disabilities. The claims file (including all virtual records in VBMS) must be made available to and be reviewed by the examiner in conjunction with the examination. Psychological testing should be conducted with a view toward determining whether the Veteran in fact experiences any psychiatric disability. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found, to include any depressive or anxiety disorder. The examiner should specifically list all psychiatric disorders found in the VA treatment records. The examiner should then indicate whether such disorders are present at the time of the examination, and if not, whether those disorders have resolved or whether such were mis-diagnosed or inappropriately diagnosed. Thereafter, the examiner should opine as to the following: (a) List all currently diagnosed psychiatric disorders and any psychiatric disorders that the Veteran had during the claim period (since 2003), but have since resolved. (b) For each disorder listed in response to paragraph (a), the examiner should render an opinion regarding whether each listed disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service. (c) Then, for each disorder listed in response to paragraph (a), the examiner should render an opinion whether each more likely, less likely, or at least as likely as not is due to or caused by the Veteran's service-connected disability, to include his hearing loss, tinnitus and/or low back disability with radiculopathy. The examiner should specifically address the Veteran's claims of embarrassment regarding use of hearing aids due to his hearing loss. (d) Finally, for each disorder listed in response to paragraph (a), the examiner should render an opinion regarding whether each has been aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected disability, to include his hearing loss, tinnitus, and/or low back disability with radiculopathy. Again, the examiner should specifically address the Veteran's claimed embarrassment due to having to wear hearing aids due to his hearing loss. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner should also discuss symptoms experienced during and after discharge from service and/or since onset, lay and medical evidence with regard to continuity of symptomatology since discharge from service and/or since onset, and any other lay statements with regard to the development of psychiatric disorder(s) and how such statements comport with generally accepted medical norms. The medical reasons for accepting or rejecting the Veteran's theories of entitlement to service connection, especially regarding the claim that depression is due to service-connected disability, must be set forth in detail. All opinions must be accompanied by a clear rationale. If the examiner determines that he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for depression, to include as secondary to service-connected disability. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant 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 case 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). ________________________________ MARK F. HALSEY 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).