Citation Nr: 1424890 Decision Date: 06/03/14 Archive Date: 06/16/14 DOCKET NO. 10-44 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and insomnia, to include as secondary to service-connected lumbar degenerative disc disease with degenerative joint disease, status-post fusion. REPRESENTATION Veteran represented by: Heather R. Vanhoose, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from September 1986 to July 1990 and from April 5, 2006 to April 9, 2006. She also had other periods of service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia which, in pertinent part, denied the Veteran's claim for service connection for insomnia. In December 2012, the Veteran testified before the undersigned Acting Veterans Law Judge at a Videoconference hearing. A hearing transcript has been associated with the claims file. In January 2013, subsequent to the issuance of the September 2012 supplemental statement of the case, additional evidence was submitted by the Veteran's attorney. This evidence was not accompanied by a waiver of agency of original jurisdiction (AOJ) consideration. However, as the Veteran's claim for service connection is being remanded, the AOJ will have an opportunity to review the evidence such that no prejudice results to her as a result of the Board's consideration of this evidence for the limited purpose of issuing a comprehensive and thorough remand. 38 C.F.R. § 20.1304(c) (2013). Additionally, while the RO had originally characterized instant claim for service connection as entitlement to service connection for insomnia only, the Board notes the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless files. A review of the documents in Virtual VA reveals a copy of the December 2012 hearing transcript. The remaining documents in Virtual VA are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Further, the Veteran's VBMS file does not contain any documents at this time. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claim for service connection for an acquired psychiatric disorder so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). The Veteran contends that her psychiatric symptoms, including insomnia and anxiety, are the result of her service-connected lumbar spine disorder. Specifically, she alleges that her symptoms began following her in-service back injury and that she began receiving treatment for them in early 2007. The post-service treatment records document complaints of insomnia or difficulty sleeping since March 2007 and anxiety since May 2008. The Board notes that while direct service connection has not been alleged by the Veteran, it has been considered by the AOJ. In March 2012, a VA examiner diagnosed the Veteran with anxiety disorder, not otherwise specified (NOS). The examiner opined that she was not able to provide an etiological opinion as to this diagnosed disorder without resorting to mere speculation, and noted that while the Veteran's symptoms of anxiety and sleep disturbance developed during the time period when she was being treated for her back injury, a more "definite opinion on the cause of her anxiety" is required. The examiner also generally noted that the Veteran's symptoms were possible side effects of amitriptyline. However, this examiner did not detail what additional evidence, if any, would be required to render such an etiological opinion nor did she state why such an etiological opinion could not be determined. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (in cases where an examiner is unable to render an opinion regarding the etiology of a condition, the examiner is required to provide an rationale as to why this is so and state whether there is additional evidence that would permit an opinion to be rendered). Therefore, in light of the deficiency detailed above, an addendum to the VA etiological opinion should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the March 2012 VA examiner for an addendum opinion. If the examiner who drafted the March 2012 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The examiner is asked to furnish an opinion with respect to the following questions: a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed acquired psychiatric disorder, to include anxiety disorder and/or insomnia, had its onset during the Veteran's period of active duty service; or, was any such disorder caused by any incident or event that occurred during her period of service? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder, to include anxiety disorder and/or insomnia, were caused by her service-connected lumbar degenerative disc disease with degenerative joint disease, status-post fusion? The examiner should comment on the Veteran's contention that her symptoms began while receiving treatment for her service-connected lumbar spine disorder. c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder was aggravated (i.e., permanently worsened beyond normal progress) by her service-connected lumbar degenerative disc disease with degenerative joint disease, status-post fusion? The examiner should also comment upon the March 2007 private treatment note suggesting that the Veteran's pain significantly inhibited her ability to sleep. In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that her reports must be considered in formulating the requested opinion. Please provide the rationale for any opinion expressed. The reasons and bases for each opinion is to be fully explained with a complete discussion of the pertinent (lay and medical) evidence of record and sound medical principles, including the use of any medical literature, which may reasonable illuminate the medical analysis in the study of this case. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include the evidence received after the September 2012 statement of the case. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Thomas H. O'Shay 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).