Citation Nr: 1342945 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-22 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to service connection for an acquired psychological disorder, to include bipolar disorder, depression, and anxiety disorder. Entitlement to service connection for degenerative disc disease (DDD), with right lower extremity radiculitis (claimed as a back disorder). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1977 to August 1977, January 2003 to May 2004, and May 2004 to September 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied service connection for bipolar disorder and DDD with right lower extremity radiculopathy (claimed as a back disorder). This matter was previously remanded by the Board in November 2012 for further development. In accordance with the remand directives, the Veteran was requested to identify his National Guard and Army Reserve Units, provide any copies of his service treatment records in his possession, authorize for release private treatment records from a Dr. Greenwood and any other private records, and identify VA Medical Centers at which he received treatment or was hospitalized. No response from the Veteran has been received. The Records Management Center was contacted in a further attempt to locate the Veterans service treatment records, and their negative response was associated with the claims file. The Board finds that the November 2012 remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The requested development having been completed, the matter again is before the Board. The Veteran submitted a new Form 21-22 in November 2013 naming Disabled American Veterans (DAV) as his appointed representative. Accordingly, the Board now recognizes DAV as the Veteran's current representative. When this matter was last before the Board, the issues of entitlement to service connection for post-traumatic stress disorder (PTSD) and entitlement to an increased disability rating for service-connected hypertension were referred to the RO for initial adjudication. For purposes of completeness, they are again referred to the RO for appropriate action. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. 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 The claim must be remanded so that new VA examinations can be provided. If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). In this case, the Veteran was provided with a VA mental health examination in June 2009 and a general medical examination in May 2009. Both examiners noted that the claims file was not reviewed in conjunction with their respective examinations as the search for the Veteran's service treatment records was on-going, and therefore the claims file was not requested for the examination. Further development has led to the association of all of the Veteran's procurable service treatment records. As the service treatment records have now been associated with the claims file, the Board finds that new VA examinations are in order so that the claims file, and specifically the Veteran's service treatment records, may be reviewed in conjunction therewith. While on remand, appropriate efforts must be made to obtain any further VA treatment records from May 2011 forward, as well as any further records identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain any further VA treatment records from May 2011 forward. Also appropriate efforts must be made to obtain any further medical records identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide the records, if able. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA mental health examination with an examiner of sufficient expertise to discuss the nature and etiology of his bipolar disorder. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. After reviewing the file and examining the Veteran, the examiner should answer the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bipolar disorder was incurred or aggravated in service? In answering this question, the examiner's attention is directed to the Veteran's service treatment records, which indicate he was released from active duty in October 2008 for bipolar disorder, and the September 2009 Social Security decision noting the onset of his disability to be February 2009. Consideration must also be given to any lay statements provided by the Veteran. A detailed rationale supporting the examiner's opinion should be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After undertaking the development listed in Directive 1 to the extent possible, schedule the Veteran for a VA examination with an examiner of sufficient expertise to discuss the nature and etiology of his degenerative disc disease and any associated, objective neurologic abnormalities (claimed as a back disorder). The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. After reviewing the file and examining the Veteran, the examiner should answer the following questions: a) Did the Veteran's degenerative disc disease (claimed as a back disorder) manifest to a compensable degree within one year of his separation from service? b) If not, was there a combination of manifestations in service sufficient to identify the disease and to establish chronicity at the time? c) If neither of those are true, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's degenerative disc disease was otherwise incurred or aggravated in service? In answering these questions, the attention is invited to the Veteran's VA treatment records from April 2009 showing lumbosacral anterior osteophytes, an April 2009 VA treatment record indicating that the Veteran began complaining of low back pain following an accident on a self-propelled lawn mower, and the September 2009 Social Security decision noting the onset of his disability to be February 2009. Consideration must also be given to any lay statements provided by the Veteran. A detailed rationale supporting the examiner's opinion should be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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). 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). _________________________________________________ MICHAEL A. PAPPAS 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).