Citation Nr: 1510678 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 12-28 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation in excess of 10 percent for service-connected chronic left wrist strain. 2. Entitlement to an increased evaluation in excess of 10 percent for service-connected thoracic spondylosis with dextroscoliosis lumbar levoscoliosis. 3. Entitlement to service connection for an acquired psychiatric disability, to include an anxiety disorder not otherwise specified, major depressive disorder, and posttraumatic stress disorder, to include as secondary to service-connected chronic left wrist strain and/or service-connected thoracic spondylosis with dextroscoliosis lumbar levoscoliosis. REPRESENTATION Appellant represented by: Timothy White, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2003 to July 2007, followed by service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Although the RO framed the issues on appeal as entitlement to service connection for an anxiety disorder not otherwise specified and a major depressive disorder, a review of the record indicates that these conditions have been treated concurrently and that the Veteran was also assessed with rule-out PTSD by the VA Medical Center. The United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized the issue and consolidated it into one claim as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim for an acquired psychiatric disorder in keeping with the Court's holding in Clemons. The Veteran presented testimony before the undersigned Acting Veterans Law Judge at a May 2014 videoconference hearing. The hearing transcript has been associated with the claims folder. A review of the Veteran's electronic claims file revealed a copy of the May 2014 Board Hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, after a review of the record, further development is required prior to adjudicating the Veteran's claims. Left Wrist and Thoracic Spine Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). Although the most recent VA examination in February 2012 was adequate at that time, its contrast with the Veteran's subsequent contentions of a worsening condition must be reconciled. VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). This duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Here, the Veteran indicated at the May 2014 Board hearing that his conditions had significantly worsened in both his wrist and back since the February 2012 VA examination. In particular, the Veteran indicated that he was having greater pain and loss of motion, resulting in inabilities to complete basic tasks such as lifting, grasping, or even buttoning his shirt. He further indicated that he had missed excessive amounts of work due to his wrist and back conditions. In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated or when the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). The Veteran has reported worsening symptoms since the February 2012 VA examination. Furthermore, the last VA examination of record is over three years old. As such, it is necessary to obtain a new examination in order to assess the current effects of the Veteran's left wrist and thoracic spine. Acquired Psychiatric Disability Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran was provided with a VA examination in March 2012. At this examination, the examiner, upon reviewing the claims file, interviewing the Veteran, and conducting objective testing, provided a diagnosis of major depressive disorder. The examiner found that both the Veteran's symptoms of depression and anxiety were related to that diagnosis. The examiner noted that the Veteran also claimed to have suffered from psychiatric problems since a motor vehicle accident in service and that he was treated in service for psychiatric symptoms. However, the VA examiner was unable to find any references to such notations in the Veteran's claims file. The VA examiner opined that the Veteran's major depressive disorder was less likely than not related to his service-connected conditions, as it was more likely related to other situational concerns going on in the Veteran's life post-service. Additionally, the VA examiner opined that the major depressive disorder was less likely related to military service, as there were no in-service notations of psychiatric treatment. The VA examiner further found that he could not evaluate or diagnose the Veteran with PTSD, as there was no verifiable stressor. The Board finds that the March 2012 VA examination is inadequate for rating purposes. First, a review of the Veteran's service treatment records show that he was in fact involved in a motor vehicle accident while stationed in Korea, as he described. A note from January 2005 shows that he received treatment for injuries sustained in such accident. Second, several entries in 2006 and 2007 show that the Veteran was treated in service for complaints of depression and insomnia, both of which are included in his current symptom profile. Although these entries do not indicate whether these symptoms were related to the Veteran's 2005 motor vehicle accident, they are consistent with his report that such psychiatric symptoms began after the accident and continued to present. As such, it appears that the 2012 VA examiner was mistaken in his assessment of the Veteran's service treatment records regarding the in-service motor vehicle accident and subsequent psychiatric treatment and, therefore, the premise upon which he based his opinion was flawed, thereby affording such low probative value. Accordingly, the Board finds that the Veteran should be afforded a new VA psychiatric examination that takes the Veteran's in-service treatment and in-service motor vehicle accident into account in relation to his currently diagnosed major depressive disorder for an etiological opinion on a direct basis. Additionally, the Veteran should be evaluated for a diagnosis of PTSD based upon the stressor of the January 2005 motor vehicle accident in which he claims to have witnessed another person killed. For the purposes of this evaluation, the Board finds that the Veteran's stressor is conceded, as his competent and credible testimony supports such. He is competent to provide such account of witnessing a death during a motor vehicle accident in which he was involved, as such would involve first-hand knowledge. He is also found to be credible, as he has been consistent in his recounting of the event to VA adjudicators and treatment professionals, as well as the fact that the Veteran's service treatment records reflect that he was in fact in a motor vehicle accident at the time he stated. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his claimed conditions, and assist him in obtaining any relevant records. 2. After any additional evidence has been associated with the claims file, provide the Veteran with an appropriate VA examination to determine the current severity of the Veteran's left wrist strain and thoracic spondylosis with dextroscoliosis lumbar levoscoliosis. 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. The examiner should take account of the Veteran's lay statements, to include such statements describing occupational problems and difficulties with activities of daily living as seen at the May 2014 Board hearing. 3. Additionally, the Veteran should be afforded an appropriate examination in order to determine the etiology of his acquired psychiatric disability, to include major depressive disorder, anxiety disorder not otherwise specified, and/or PTSD. 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. The examiner is to consider the Veteran's claimed stressor of witnessing a death while involved in a motor vehicle accident in 2005 in Korea as conceded. The examiner must provide all current diagnoses for the Veteran's psychiatric disabilities, to include an evaluation of whether the Veteran has PTSD. (a) If a disability manifested by PTSD is diagnosed, the VA psychologist or psychiatrist shall provide an opinion as to whether such is at least as likely as not (i.e., a 50 percent probability or greater) due to or aggravated by the Veteran's period of active service, to include relationship to the verified motor vehicle accident stressor. In doing so, the examiner shall clearly identify the specific events which are considered stressors supporting the diagnosis, and fully explain why the stressors are considered sufficient under DSM-IV. (b) If a psychiatric disability other than PTSD is diagnosed, the examiner shall provide an opinion as to whether such is at least as likely as not (i.e., a 50 percent probability or greater) due to or aggravated by the Veteran's period of active service. In this regard, the examiner must also discuss the psychological effects, if any, of the Veteran's motor vehicle accident and subsequent in-service treatment for insomnia (August 2006) and/or depression (April 2006). A complete rationale for all opinions must be provided. 4. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).