Citation Nr: 1603486 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 08-15 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include bipolar disorder and posttraumatic stress disorder. 2. Entitlement to service connection for gastroesophageal reflux disease, to include as secondary to a psychiatric disability. 3. Entitlement to service connection for degenerative changes of the cervical spine, to include as secondary to service-connected bilateral knee disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to July 1978. This case comes before the Board of Veterans' Appeals (Board) from November 2005 and May 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2012, the Veteran testified during a Board hearing at the RO. In a January 2013 decision, the Board denied the claim for an initial compensable rating for bilateral hearing loss and remanded the claims for service connection for degenerative changes of the cervical spine, bipolar disorder, and gastroesophageal reflux disease (GERD). In August 2014, the Board remanded the claims for further development. At that time, the Board broadened the psychiatric disability claim to include posttraumatic stress disorder (PTSD). Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran claims that he has a psychiatric disability that had its onset in service. He was afforded a VA examination in January 2013, and the examiner provided a negative opinion. In the August 2014 remand, the Board requested that evidence cited in a May 2013 rating decision that denied service connection for PTSD be associated with the claims file. The record reflects substantial compliance with the remand request. Dyment v. West, 13 Vet. App. 141 (1999). However, the Board finds that further development is warranted based on a May 2015 statement from the Veteran. In that statement, he requested a new psychiatric examination, indicating that at the prior examination, he was unable to express just how deeply the events in service had affected him. Upon further review of the January 2013 examination report, the Board observes that the Veteran did not report his intermittent use of valium since shortly after separation from service, as noted during VA treatment in August 2006. The examiner's opinion was based in large part on the history reported at that examination and thus may not have been based on an accurate history. Moreover, that omission suggests that the Veteran may not have fully articulated the circumstances surrounding the nature and onset of his disability, as indicated in his May 2015 statement. Thus, to afford the Veteran every opportunity to substantiate his claim, he should be afforded a new VA examination. As the remand of the above claim could affect the claim for service connection for GERD, the Board finds that the claims are inextricably intertwined and a Board decision on the latter claim at this time would be premature. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran also claims that his cervical spine had its onset in service. In the prior remand, the Board noted the opinion in a January 2013 VA examination report but found the rationale to be incomplete as the examiner did not address the Veteran's report of in-service injury and progressive symptoms since that time with chronic symptoms starting in the last 10 years. The Board thus requested that the claims file be returned to the examiner for an addendum opinion addressing the above history. In March 2014, the Veteran was afforded a new examination. The examiner opined that the Veteran's cervical spine disability was not incurred in or caused by service. The examiner noted that there is no evidence of neck symptoms or treatment for a neck injury in the service treatment records or within a year of separation from service. The examiner also noted that the separation examination report does not include any mention of a neck injury or symptoms, although the Veteran's current recollection is apparently different. The examiner also noted that after service, the Veteran had a motorcycle accident and sustained significant trauma during falls, both of which would be expected to cause neck trauma. The examiner concluded that symptoms of neck pain reported 20 years after service do not implicate injury during service. While the Board appreciates the examiner's opinion, the rationale remains incomplete. Other than noting the Veteran's assertion that he had reported neck symptoms at his service separation examination contrary to the examination report, the examiner did not discuss the Veteran's lay statements regarding history and chronicity of symptomatology. As noted by the January 2013 examiner, the Veteran reported in-service neck injuries playing football and having progressive symptoms since that time with chronic symptoms starting in the last 10 years. Thus, the claims file should be returned to the examiner for an addendum opinion that addresses the above history, in compliance with the prior remand. Stegall v. West, 11 Vet. App. 268 (1998). Prior to scheduling the examination and requesting the addendum, any outstanding medical records should be obtained. The record contains VA treatment notes through January 2015. Thus, any treatment notes since that time should be obtained. Lastly, additional evidence has been added to the claims file since the May 2015 supplemental statement of the case. Thus, the AOJ should consider it in the first instance. Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment records since January 2015. 2. Then, schedule the Veteran for a VA psychiatric examination. The examiner should review the claims file and note that review in the report. The examiner should provide diagnoses of all psychiatric disorders present. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder had its onset during active service or within one year thereafter, or is otherwise causally related to such service. The examiner should discuss the Veteran's psychiatric history, including the reported depression and excessive worry at the time of separation from service and the reported intermittent use of valium since shortly after separation from service noted during VA treatment in August 2006. A rationale for all opinions should be provided 3. Arrange for the Veteran's claims file to be reviewed by the examiner who conducted the March 2014 VA cervical spine examination for an addendum opinion. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability, diagnosed as degenerative changes of the cervical spine, had its onset during active service or within one year thereafter, or is otherwise causally related to such service. The examiner should discuss the Veteran's lay statements regarding history and chronicity of symptomatology, to include his report at the January 2013 examination of in-service injury playing football and progressive symptoms since that time with chronic symptoms starting in the last 10 years. The examiner should provide a complete rationale for all conclusions. 4. Then, readjudicate the claims with consideration of all the evidence added to the claims file since the May 2015 supplemental statement of the case. If any decision remains adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ Michael J. Skaltsounis 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) (2015).