Citation Nr: 1413981 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 10-45 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1971, with Vietnam service from April 1970 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was held before the undersigned Acting Veterans Law Judge at the RO in October 2013 and a transcript is of record. The Acting Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence; however, the Veteran did not submit any additional evidence thereafter. During the Board hearing, the Veteran clarified that his depression is claimed as due to his experiences while serving in Vietnam, rather than Agent Orange exposure itself. See Bd. Hrg. Tr. at 12-13. This issue has been recharacterized as stated above to more accurately reflect the nature of the claim. A review of the Virtual VA and VBMS electronic claims files reveals the October 2013 Board hearing transcript and additional evidence of the Veteran's ongoing VA treatment (both Virtual VA). The RO's most recent October 2012 supplemental statement of the case (SSOC) reflects consideration of the VA medical records. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. In particular, the Veteran has not been provided VA examinations in connection with his claims. There are current mental health diagnoses, current back pain, and a history of degenerative joint and disc disease. See, e.g., March 2008 and June 2009 VA records. The Veteran has also provided competent statements as to in-service back injuries, Vietnam service as supported by the record, and an allegation of depression since service. Thus, there is evidence that the Veteran's current symptoms may be related to his military service, but insufficient medical evidence to make a decision on the claims, thereby satisfying the low threshold for obtaining examinations under VA's duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the record reflects that the Veteran is in receipt of Social Security Administration (SSA) benefits based on disability (Virtual VA); however, it does not appear that related documents, potentially supportive of the Veteran's claims, are of record. Thus, these records should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran also indicated during the Board hearing that he was able to contact several fellow service members regarding his claimed in-service back injury, but he did not submit any additional evidence in the 60-day period the record remained open following the hearing. On remand, he will have another opportunity to provide additional evidence in support of his claims. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his mental health and lumbar spine disorders. After acquiring this information and obtaining any necessary authorization, obtain and associate these records with the claims file. It is noted that the record shows that some of the treatment records from private providers previously identified by the Veteran are no longer available, or the provider did not reply after multiple requests. As the case is being remanded, the Veteran may submit or request that VA attempt to obtain any additional treatment records. 2. Obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. After any additional evidence is associated with the claims file, provide the Veteran a VA examination to determine the nature and etiology of any current psychiatric disorder. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The Veteran has contended that he has developed a psychiatric disorder as a result of his experiences while serving in Vietnam, such as incoming mortar fire and being in fear for his life when he first arrived. The Veteran's service records show that he had service in Vietnam from April 1970 to March 1971. The examiner should identify all current psychiatric disorders. For each disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including as a result of the reported in-service circumstances. If a diagnosis of PTSD is provided, the examiner must also elicit from the Veteran a full history of any instance where he feared hostile military or terrorist activity. The examiner must provide an opinion as to whether the Veteran's claimed stressors are adequate to support a diagnosis of PTSD based on a fear of hostile military or terrorist activity during service, and whether his symptoms are related to the claimed stressors. The examiner must be reminded of the following: the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. An explanation for all opinions expressed 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. 4. After any additional evidence is associated with the claims file, provide the Veteran a VA examination to determine the nature and etiology of any current lumbar spine disorder. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The Veteran has contended that, despite a post-service back injury in 2006, he has experienced chronic back problems due to in-service injuries where another service member cut the ties from his hammock, causing him to fall, and from marching with heavy gear. The record shows that the Veteran sustained a work injury to his back in 2006. See Southwest Spine Institute treatment records. The examiner should identify all current lumbar spine disorders. For each disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including as a result of the alleged injuries therein. In rendering this opinion, the examiner should discuss medically known or theoretical causes of any current lumbar spine disorder(s) and describe how such disorders generally present or develop in most cases, in determining the likelihood that the current disorder(s) is related to in-service events as opposed to some other cause. The examiner must be reminded of the following: the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. An explanation for all opinions expressed 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. 5. The Veteran is hereby notified that it is his responsibility to report for any scheduled 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 claim. 38 C.F.R. § 3.655. In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address, and to his representative. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain 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 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 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).