Citation Nr: 1343124 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 06-20 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for residuals of a stroke. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder, dysthymic disorder, recurrent major depressive disorder, and anxiety. 3. Entitlement to service connection for a heart disability. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for headaches, including secondary to service-connected left ear disabilities. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In May 2008, the Board remanded this matter for additional evidentiary development. In July 2010, the Board issued a decision which denied the Veteran's claims of entitlement to service connection for residuals of stroke, psychiatric disorder, heart disability, and back disability. The Board also remanded the issue of entitlement to service connection for headaches, including secondary to service-connected left ear disabilities, for additional evidentiary development. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2010, the Court granted a Joint Motion for Remand, vacating the Board's decision and remanding the case to the Board. In February 2011, the Board remanded this matter for additional development, including scheduling the Veteran for a Travel Board hearing. In May 2012, the Veteran testified at hearing before the undersigned via Video Conference. A transcript of that hearing is of record. In July 2012, the Board remanded this matter for additional evidentiary development. The issue concerning service connection for a psychiatric disorder has been recharacterized to properly reflect the Veteran's variously-diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled); McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board is taking this action to expand the scope of the Veteran's claim so that it recognizes any current psychiatric disorder found, regardless of how it may be diagnosed by individual physicians. For the reasons indicated below, the appeal must again be REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for residuals of a stroke, a psychiatric disorder, a heart disability, a back disability, and headaches. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A. Social Security Records In July 2012, the Board remanded this matter directing the RO to contact the Social Security Administration (SSA) and "request copies of all records used in determining the Veteran's entitlement to disability benefits, to include any decision rendered by an Administrative Law Judge." As noted in the December 2010 Joint Motion, which was granted by the Court, SSA had previously reported to the RO that it was unable to locate the Veteran's medical treatment records. SSA did not, however, indicate whether the actual decision granting the Veteran SSA disability benefits was available. Thus, to comply with the Court's December 2010 Order, an attempt must be made by the RO to obtain the actual decision which served as the basis for awarding the Veteran SSA disability benefits. In April 2012, the RO requested a copy of any decisions rendered by the SSA concerning the Veteran. In its reply, received in October 2012, SSA indicated that the Veteran's "medical records" have been destroyed. Later that same month, the RO issued a memorandum which included a formal finding that the Veteran's SSA records were unavailable for review. It also indicated that the Veteran had been sent correspondence indicating that these records could not be located. In August 2013, the Veteran's representative submitted a Written Brief indicating that the Veteran was receiving SSI disability benefits from SSA; and that an additional search for records relating to these benefits should produce additional records. 38 C.F.R. § 3.159. The Veteran's representative further indicated that its requests for copies of all information obtained from SSA went unanswered, and that these documents were to be used by the Veteran's representative to ensure that the RO's requests to and the SSA response from were adequate. In addition to the concerns referenced by the Veteran's representative, the Board finds that the April 2012 response from SSA, indicating that the "medical records" were destroyed, still leaves in question the issue of whether the actual decision granting the Veteran SSI disability benefits is available. Resolving this issue is required for the Board to be in compliance with the Court's December 2010 Order. Stegall v. West, 11 Vet. App. 268 (1998). Under these circumstances, the RO must request copies of any SSA decisions relating to the Veteran and his award of SSI or any other SSA disability benefits. B. Medical Examination Required - Psychiatric Disorder In support his claims, the Veteran submitted a July 2013 private psychiatric evaluation from D.B., M.D. Following a mental status examination, the evaluation report concluded with diagnoses of posttraumatic stress disorder (PTSD), dysthymia, and major depression. In an August 2013 follow up letter, Dr. B. opined that there was a greater than 50 percent probability that the Veteran continues to experience symptoms consistent with PTSD directly related to the events he described in his basic training exercises. A review of the evaluation report and opinion letter received from D.B., M.D., failed to indicate what, if any, treatment records were considered in rendering the opinion. Moreover, the diagnoses provided suggest that the Veteran's psychiatric status may have changed during the course of this appeal. Finally, the opinion provide by Dr. B. was limited solely to the Veteran's diagnosis of PTSD. Thus, consideration of his other psychiatric diagnoses remains. Under these circumstances, the RO should attempt to obtain the Veteran's updated treatment records. Thereafter, the RO must schedule the Veteran for the appropriate examination to identify any current psychiatric disorders found, and provide an opinion as to whether any disorder identified was caused or aggravated by his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). C. Medical Examination Required - Back Disability In support his claims, the Veteran submitted a June 2013 opinion letter from his cardiologist, D.H., M.D., F.A.C.C. In the letter, Dr. H. noted that the Veteran entered military service "without evidence of lumbosacral back disease." During his military service, the Veteran experienced back pain over the course of two months, during which time he sought treatment on at least four occasions. Based upon this review of the evidence, Dr. H. opined it was more likely than not that the Veteran's current "chronic back condition resulted from an in-service injury." The Board finds the rationale provide by Dr. H. to be inadequate. Dr. H. fails to provide a current diagnosis for the Veteran's "chronic back condition," and then goes on to attribute this generic back disability to an inservice injury - which the opinion letter fails to identify. The absence of any specificity in this opinion significant hampers its probative value. In August 2013, the Veteran's representative submitted a Written Brief indicating that the January 2009 VA opinion addressing the etiology of the Veteran's current back disorder, diagnosed as degenerative joint disease, erroneously indicated that the Veteran's inservice complaints of back pain were attributed to his urinary tract infections. Under these circumstances, the RO should attempt to obtain the Veteran's updated treatment records. Thereafter, the RO must schedule the Veteran for the appropriate examination to identify any current back disabilities found, and provide an opinion as to whether any back disability identified was caused or aggravated by his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Accordingly, the case is remanded for the following actions: 1. Request that the Veteran identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him for residuals of stroke, psychiatric disorder, heart disability, back disability, and/or headaches, during the course of this appeal. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Contact SSA to request copies of any decisions relating to the Veteran's claims for and eventual award of SSI disability benefits, as well as any disability benefits he is receiving from SSA. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Any negative response received from SSA must specifically indicate that no disability benefits decisions are available. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. The Veteran must be afforded the appropriate VA examination to determine whether any psychiatric found during the course of this appeal is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and any records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any psychiatric disorder found, or previously diagnosed during the course of this appeal, to include PTSD, dysthymic disorder, recurrent major depressive disorder, and anxiety, is related to the Veteran's active duty service. If the Veteran meets the criteria for a diagnosis of PTSD, the examiner must specify the stressor or stressors that serve as the underlying basis for this diagnosis, and also provide as much detail as possible concerning each alleged stressor relied on in rendering the diagnosis. The examiner must also specify whether each stressor established by the record was sufficient to produce PTSD; and whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiner. The examiner must also provide an opinion as to whether any of the Veteran's other psychiatric disorders, including dysthymic disorder, recurrent major depressive disorder, and anxiety disorder found or previously diagnosed, began in service or otherwise is related to his military service; or whether they are related to post service injuries. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The Veteran must be afforded the appropriate VA examination to determine whether any current back disability found is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any current back disability found is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated on the merits. If any issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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. 2013). _________________________________________________ L. M. BARNARD Acting 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) (2013).