Citation Nr: 1343355 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-41 712 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for insomnia. 3. Entitlement to service connection for joint pain. 4. Entitlement to service connection for alcohol abuse as secondary to service-connected posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to September 1966, to include service in Vietnam. His decorations include the Combat Infantry Badge and the Parachute Badge. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2008 rating decision in which the RO, inter alia, denied service connection for hypertension, insomnia, and joint pain. In February 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. This appeal also arose from those portions of the December 2008 rating decision in which the RO, inter alia, denied service connection for a back disability (claimed as "arthritis") and, in effect, also denied service connection for alcohol abuse as secondary to service-connected PTSD. The Veteran expressed disagreement with the RO's denial of those claims in his October 2009 substantive appeal. In the October 2009 substantive appeal, the Veteran specifically indicated that he was limiting his appeal to issues that did not include entitlement to service connection for hearing loss. A July 2012 VA Form 21-0820 (Report of General Information) also reflects clarification from the Veteran to the effect that, by statements made in his substantive appeal, he was not then seeking a total disability rating based on individual unemployability due to service-connected disability (TDIU), or an adjudication as to his competency. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claims. The electronic file contains December 2013 brief from the Veteran's representative, which the Board has reviewed. For the reasons expressed below, the claims for service connection for hypertension, insomnia, and joint pain, and the claims for service connection for alcohol abuse and a back disability-for which the Veteran has completed the first of two actions required to place these matters in appellate status-are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in an August 2012 statement, the Veteran raised the issue of his entitlement to an increased rating for PTSD. It does not appear that that issue has yet been addressed by the RO. As such, that matter is not properly before the Board, and is thus referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. At the outset, it is unclear from the evidence of record whether the Veteran's insomnia is a sign or symptom of his service-connected PTSD. The report of a May 2008 VA examination appears to imply that it is. However, a November 2007 report from a private examiner sets out separate diagnoses for insomnia ("insomnia unspecified") and psychiatric impairment (diagnosed at that time as "depressive disorder not elsewhere classified"), thereby suggesting that the Veteran's insomnia might have another etiology. In submissions made in connection with the present appeal, the Veteran has made statements to the effect that he suffers from "joint pain" that began shortly after service. His representative has advanced the theory that the pain can be attributed to numerous in-service parachute jumps. The Veteran's service treatment records are negative for any mention of jump-related injuries. However, they do show that he suffered a fracture to right fifth metacarpal during a fight in service. In addition, the Veteran reported a history of "cramps in [his] legs" when he was examined for service separation in September 1966. Under these circumstances, given that the etiology of the Veteran's insomnia is not entirely clear, the evidence suggesting that the Veteran's complaints of joint pain "may be associated" with service, and the absence of a current medical opinion addressing these matters, the Board finds that an examination and medical opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the Veteran's claims. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the RO should arrange for the Veteran to undergo a VA mental disorders examination, by a psychiatrist or psychologist, and a VA spine examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report for any scheduled examination(s), without good cause, may result in denial of his claim(s) for service connection for insomnia and/or joint pain (inasmuch as the claim(s) will be adjudicated based on the evidence of record). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for any scheduled examination(s), the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. Records of the Veteran's treatment through the VA Medical Centers (VAMCs) in Phoenix and Tucson, Arizona were last obtained and associated with the Veteran's claims file on August 19, 2009; thus, more recent medical records from those facilities may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facilities all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since August 19, 2009. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the matters on appeal. The RO's letter to the appellant should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding non-VA medical records, including any relevant records of private treatment he may have received at Western Cardiology, and from Dr. Maximov, prior to November 2004. The RO should also inform the Veteran of the information and evidence necessary to substantiate a claim for secondary service connection. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. As indicated, the RO's adjudication of these claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. As a final matter, the Board points out that, in its December 2008 rating decision, the RO, inter alia, denied the Veteran's claims for service connection for a back disability (claimed as "arthritis") and, in effect, also denied service connection for alcohol abuse as secondary to PTSD. The Veteran expressed disagreement with the RO's denial of those claims in his October 2009 substantive appeal. The Veteran's claim for service connection for hypertension is inextricably intertwined with the latter claim, inasmuch as the Veteran in his NOD advanced the theory that his hypertension is secondary to alcohol abuse. However, the RO has yet to issue a SOC with respect to the Veteran's claims for a back disability and alcohol abuse, the next step in the appellate process. See 38 C.F.R. § 19.29 (2013); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these matters must be remanded to the RO for the issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105(West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2013). Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a SOC on the claims for service connection for alcohol abuse as secondary to PTSD, and for a back disability, along with a VA Form 9, and afford them an appropriate opportunity to submit a substantive appeal to perfect an appeal on those issues. The Veteran and his representative are is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-here, as regards the claims for service connection for alcohol abuse as secondary to PTSD, and for a back disability, wiithin 60 days of the issuance of the SOC. 2. Obtain from the Phoenix and Tucson VAMCs any outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 19, 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records, including records of any relevant treatment he may have received at Western Cardiology, and from Dr. Maximov, prior to November 2004. In the letter, inform the Veteran of the information and evidence necessary to substantiate a claim for secondary service connection. Also, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include copies of records of any relevant treatment he may have received at Western Cardiology, and from Dr. Maximov, prior to November 2004-following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA mental disorders examination, by a psychiatrist or psychologist, and a VA spine examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND and printed paper copies of all relevant Virtual VA records, must be made available to each individual designated to examine the appellant, and each examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Each examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. Mental Disorders Examination: The psychiatrist or psychologist should offer an opinion, consistent with sound medical principles, as to whether the Veteran's insomnia is most properly viewed as a sign or symptom of his service-connected PTSD, or as a separate diagnostic entity. In so doing, the examiner should discuss the significance, if any, of a November 2007 report from a private examiner setting out separate diagnoses for insomnia ("insomnia unspecified") and psychiatric impairment. If it is the examiner's opinion that Veteran's insomnia is most properly viewed as a separate diagnostic entity, rather than as a sign or symptom of PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the insomnia was caused or is aggravated (i.e., permanently worsened beyond natural progression) by service-connected PTSD. Orthopedic Examination: The physician should discuss with the Veteran and identify the specific anatomical locations where he is alleging service-related joint pain. The physician should clearly indicate, with respect to each such location, whether the Veteran has a diagnosed, identifiable malady or condition of the affected joint. Then, with respect to each diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by service. In so doing, the physician should discuss the significance, if any, of the fact that the Veteran's service treatment records reflect that he suffered a fracture to right fifth metacarpal during a fight in service. The examiner should also discuss the significance, if any, of the fact that the Veteran received the Parachute Badge during service; that he reported a history of "cramps in [his] legs" when he was examined for service separation in September 1966; and the theory, advanced by the Veteran's representative, that joint pain of which the Veteran presently complains can be attributed to numerous in-service parachute jumps. 6. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all evidence (to particularly include all that added to the claims file since the RO's last adjudication of the claims) and legal authority (to include that governing secondary service connection, where appropriate). 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to, and discussion of, all additional legal authority considered-in particular, that governing secondary service connection claims-along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 appeal. 38 C.F.R. § 20.1100(b) (2013).