Citation Nr: 1400309 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 09-42 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), to include as secondary to Meniere's disease. 2. Entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in August 2013. A transcript of those proceedings has been associated with the Veteran's electronic claims file, known as Virtual VA. The Board notes that the first claim on appeal was originally characterized as entitlement to service connection for anxiety and depression. However, the Veteran suggested at his August 2013 Board hearing that he intended his claim to encompass any psychiatric disorder potentially arising from the symptoms he has manifested. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). For this reason, the issue has been recharacterized as an acquired psychiatric disorder other than PTSD, to include as secondary to Meniere's disease. The issue of entitlement to service connection for Meniere's disease was also listed in the July 2009 statement of the case and appealed to the Board. Service connection for Meniere's disease was granted by the RO in a June 2013 rating decision. As such, this issue has been resolved, and is not before the Board. See 38 C.F.R. § 20.200 (2013); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). A review of the Veteran's Virtual VA electronic claims file reveals the transcript of the August 2013 Board hearing and other documents relevant to the issues on appeal. A review of the Veterans Benefits Management System paperless claims processing system reveals no additional records relevant to the current appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the record reveals that further action on the claim on appeal is warranted. The Veteran asserts that he has a psychiatric disorder which has been caused by stressful in-service events was caused or aggravated by his service-connected Meniere's disease. The Veteran was afforded two VA examinations in July 2009 and in August 2013. The 2009 VA examiner diagnosed an anxiety disorder and provided an opinion regarding the disorder's relationship to service-connected tinnitus. Because service connection for Meniere's disease was not yet in effect, the relationship to this disability was not discussed. Furthermore, the examiner did not discuss whether the anxiety disorder was due to service or caused or aggravated by a service-connected disability. The 2013 VA examiner diagnosed depressive disorder with features of anxiety and was found to not meet the criteria for a diagnosis of PTSD. The examiner did not have access to the claims file and did not provide opinions regarding the etiology of the Veteran's other psychiatric diagnoses or whether any disorder had been aggravated by service-connected disability. The Board thus finds that the 2009 and 2013 examinations are in sufficient to decide the claim on appeal, and an additional VA psychiatric examination is needed to enable the proper adjudication of the claim. The Veteran has stated that he receives all medical treatment at the Shoals Area (Florence) Clinic in Sheffield, Alabama, an affiliated facility of the Birmingham VA Medical Center. Currently, the claims file contains VA records dated up to April 2012. As there may be additional pertinent treatment records, all outstanding VA treatment records should be obtained and associated with the claims file. Additionally, the RO denied the Veteran's claim for service connection for PTSD in May 2010 and September 2011 rating decisions. In June 2012, the Veteran submitted statements with additional information regarding his claimed in-service stressors and expressing frustration with the VA denial of his claim. These letters were submitted within one year of the issuance of the rating decision and can be reasonably construed as disagreement with the prior determination. The Board thus accepts the July 2010 correspondence as a Notice of Disagreement with the May 2010 rating decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2013). The RO has not yet issued the Veteran a statement of the case on this matter; thus, a remand for the issue of entitlement to service connection for PTSD is required. Manlincon v West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records dated since April 2012, from the Birmingham VA Medical Center and its affiliated facility, the Shoals Area (Florence) Clinic. The procedures set forth in 38 C.F.R. § 3.159(c) must be followed and the records must be associated with the claims file. 2. Issue a statement of the case addressing the issue of entitlement to service connection for PTSD. The Veteran is hereby notified that, following the receipt of the statement of the case concerning this issue, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, should this issue be returned to the Board for appellate review. 3. After any additional records are associated with the claims file, provide the Veteran with an examination by an appropriate VA examiner to determine the nature and etiology of his current psychiatric disorders. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The VA examiner should offer an opinion as to the Veteran's current psychiatric disorders. The examiner is asked to specifically discuss the Veteran's prior psychiatric diagnoses of depressive disorder and anxiety disorder. For every psychiatric diagnosis found, the examiner should state whether it is at least as likely as not (50 percent or more probability) that the Veteran's psychiatric disorder is a result of any incident in service, began to manifest during service, or is etiologically related to the Veteran's active duty service in any way; or whether it is at least as likely as not (50 percent or more probability) that it has been caused or aggravated (permanently made worse) beyond the disorder's natural progression by his service-connected Meniere's disease. In rendering this opinion, if the etiologies of the diagnosed disorders are attributed to multiple factors/events, the examiner should specify which symptoms/diagnoses are related to which factors/events. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled 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. 5. Then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case which addresses all relevant actions taken on his claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last supplemental statement of the case. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2013). _________________________________________________ K. MILLIKAN 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).