Citation Nr: 1342604 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 09-28 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected right fourth toe Morton's neuroma. 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right fourth toe Morton's neuroma. 4. Entitlement to service connection for a back disability, to include as secondary to service-connected right fourth toe Morton's neuroma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to December 1978. This matter appears to come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). As discussed below, the Veteran's claims file appears to be incomplete. As a result, the issues on appeal and the date of the underlying RO decision may be subject to revision. For example, the claims file contains what appears to be a March 2006 notice of disagreement to a decision denying service connection for a left knee disability. If this is a valid notice of disagreement, the issue of entitlement to service connection for a left knee disability may be on appeal from a decision issued earlier than January 2008. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's claims file appears to be incomplete. For example, a September 2007 duty to assist letter indicates that claims for service connection for a left knee disability and low back disability were previously denied, yet there is no record of any rating decision issued prior to January 2008. In addition, service-connection is in effect for right fourth toe Morton's neuroma, but the decision awarding that benefit is not in the file. There is no indication in the claims file that any attempts have been made to locate the Veteran's complete file or to rebuild the file if part of it was lost. On remand attempts to locate and rebuild the Veteran's claims file should be made as necessary. Additional records development should also be undertaken. A May 2006 VA neuropsychiatric testing note indicates that the Veteran was involved in a car accident in the 1980s and sustained multiple orthopedic injuries which resulted in chronic lower and upper back pain. He was reportedly receiving most of his medical care at the Tampa, Florida VA Medical Center (VAMC). These relevant records are not in the file and should be obtained on remand. In addition, current VA treatment records should be obtained. A November 2011 VA psychiatric intake note, and other treatment notes, indicate that the Veteran is receiving disability benefits from the Social Security Administration (SSA). Records from SSA are not in the file. On remand, these records should be obtained. The Veteran should also be asked to provide information and authorization for VA to obtain any relevant, outstanding private treatment records. The Veteran asserts that while at Ft. Jackson in Columbia, South Carolina, he witnessed a fellow soldier who had been shot during a live fire training exercise. This incident was researched by the U.S. Army and Joint Services Records Research Center (JSRRC) with negative results. However, the JSRRC was only asked to investigate this incident during the month of February 1977 as that is when the Veteran originally reported the incident occurred. During his hearing, the Veteran indicated that this incident may have occurred during March 1977. Board Hearing Tr. at 4. The JSRRC should be asked to research this claimed stressor based on the new date range provided by the Veteran. Medical nexus opinions related to the orthopedic claims have been obtained by VA and were submitted by the Veteran. However, all of these opinions either contain no rationale for the opinions offered or do not clearly account for the relevant evidence. In addition, an examination regarding the claim for entitlement to service connection for an acquired psychiatric disorder has not been provided but appears necessary in this case. As such, additional VA examinations are warranted. Accordingly, the case is REMANDED for the following action: 1. Make attempts to locate the missing portion of the Veteran's claims file. If the file cannot be found, the file should be rebuilt to the extent possible and the Veteran should be informed as required. All actions in this regard should be clearly documented in the claims file. 2. Ask the Veteran to provide authorization to obtain any outstanding, relevant private treatment records. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 3. Obtain relevant treatment records from the Bronx, New York VAMC dating from March 2012 to July 2012 and since December 2012, and from the Tampa VAMC dating since December 1978. If any records are not available, the Veteran should be notified of such. 4. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. If any records are not available, the Veteran should be notified of such. 5. Request that JSRRC investigate the Veteran's claimed stressor related to seeing a soldier who had been shot during a live fire training exercise in South Carolina during the month of March 1977. 6. After paragraphs 1 through 5 have been accomplished to the extent possible, schedule the Veteran for a VA psychiatric examination to determine if he has an acquired psychiatric disorder related to his military service. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide a list of all diagnosed psychiatric disorders and an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder other than PTSD arose during service or is otherwise related to service. If the examiner diagnoses PTSD, he or she should clearly indicate all stressful event(s) resulting in the diagnosis. A rationale for all opinions expressed should be provided. The examiner should consider that the Veteran has reported childhood sexual assault and being stabbed in 2010. 7. After paragraphs 1 through 5 have been accomplished to the extent possible, schedule the Veteran for a VA knee examination to determine if he has a current knee disability secondary to his service-connected right fourth toe Morton's neuroma. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current knee disability: (a.) was caused by service-connected right fourth toe Morton's neuroma; or (b.) has been aggravated (permanently worsened) by service-connected right fourth toe Morton's neuroma. A rationale for all opinions expressed should be provided. The examiner is asked to pay particular attention to the opinions offered in September 2007 (bilateral knee mild osteoarthritis is not caused by or a result of right foot condition), September 2008 (bilateral knee pain likely secondary to chronic right foot pain and abnormal gait), and October 2008 (right foot disability leads to gait alteration and development of tendonitis in the knees). 8. After paragraphs 1 through 5 have been accomplished to the extent possible, schedule the Veteran for a VA spine examination to determine if he has a current back disability secondary to his service-connected right fourth toe Morton's neuroma. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disability: (a.) was caused by service-connected right fourth toe Morton's neuroma; or (b.) has been aggravated (permanently worsened) by service-connected right fourth toe Morton's neuroma. A rationale for all opinions expressed should be provided. The examiner is asked to pay particular attention to the opinions offered in September 2007 (spondylolisthesis is not caused by or a result of right foot condition), May 2008 (back pain may be exacerbated by weight and also by gait, if he is significantly protecting his right foot), September 2008 (low back pain likely secondary to chronic right foot pain and abnormal gait), and October 2008 (right foot disability leads to gait alteration and development of chronic muscular strain and somatic dysfunctions in the back). 9. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 10. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Laura H. Eskenazi 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).