Citation Nr: 1624571 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 12-13 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). 2. Entitlement to service connection for a sleep disorder, to include insomnia and/or sleepwalking (claimed as an unspecified sleep disorder). 3. Entitlement to service connection for a left foot disorder. 4. Entitlement to service connection for cervical spine disorder. 5. Entitlement to service connection for a thoracolumbar spine disorder. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from May 1976 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the above issues, which the Veteran has timely appealed. The Board has combined the claims for insomnia and an unspecified sleep disorder into a generalized sleep disorder claim. The Veteran testified at a Board hearing before the undersigned at a hearing in March 2016. The issue of service connection for sleep apnea has been raised by the record in a March 2014 Supplemental Claim for Compensation, VA Form 21-526b, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND On appeal, particularly in his March 2016 hearing, the Veteran has averred that he was injured during an incident in service where his left foot was run over on a runway by an aircraft tow machine, which caused him to fall over and injure his back and neck. He also indicated several incidents where he was beaten up or got into fights with other servicemembers, which injured his back and neck as well. He further testified that his psychiatric disorder began in service, particularly due to a pattern of harassment by his superior which, at least in one case, led to the Veteran getting into a physical altercation over a bunk assignment with another servicemember. A review of the claims file demonstrates that treatment records from the Richmond and Hampton VA Medical Centers have been obtained. Formal Findings of Unavailability exist in the record for VA treatment records from the Philadelphia and Brooklyn VA Medical Centers for the years of 1985 and 1980, respectively. However, during the March 2016 hearing, the Veteran indicated that he was treated at the Hawaii and Brooklyn VA Medical Centers directly after discharge from service in 1978 and/or 1979. It therefore appears to the Board that there may be outstanding VA treatment records; a remand of all of the above claims is necessary in order to obtain those identified VA records. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); 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). The Veteran additionally noted that he initially filed for Social Security Administration (SSA) benefits in the early 1980's, at which time he was denied benefits; subsequently, he reapplied at some point and is now in receipt of SSA disability benefits. It does not appear that any attempt to obtain SSA records has been made in this case. On remand, the AOJ should attempt to obtain any and all SSA records related to any disability benefits application filed by the Veteran since his discharge from service and associate those records with the claims file. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). Next, the Board notes that VA examinations of the Veteran's claimed sleep, left foot and thoracolumbar spine disorders have not been obtained in this case. The Veteran has averred that he injured his left foot and back either in an incident wherein his foot was run over by a aircraft tow machine and/or in fights with fellow servicemembers. The Veteran is shown to have at least one "scuffle" noted that resulted in abrasions of the back, and at least one other fight that resulted in a right finger injury. While no treatment for any left foot injury exists in the service treatment records, the Veteran is competent to attest to a foot injury. With respect to the Veteran's claimed sleep disorder, his service treatment records document several instances of treatment for sleepwalking. Accordingly, the Board finds that the extremely low threshold for obtaining a VA examination in this case has been met with respect to the claimed sleep, left foot, and thoracolumbar spine claims in this case; on remand, such should be afforded to the Veteran. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Finally, with respect to the psychiatric and cervical spine claim, the Board notes that VA most recently obtained VA examinations as to those claimed disorders in May 2013 and May 2012, respectively. In the VA psychiatric examination report, the examiner only diagnosed the Veteran with PTSD, and did not address any additional psychiatric disorders, particularly depression, and the etiology of such. With respect to the cervical spine claim, the May 2012 examiner noted that the Veteran had osteoarthritis of the cervical spine with degenerative disc disease (DDD). The examiner noted the "scuffle" during service which demonstrated neck pain at that time. Although he opined the current cervical spine disorder was not the "result of isolated acute minor trauma during active duty military service", the examiner provided no rationale to support this opinion. Additionally, he did not address other noted fights in service or the Veteran's alleged accident where he claims to have injured his neck. Because of the above noted deficiencies, the Board finds that the May 2012 and May 2013 VA cervical spine and psychiatric examinations are inadequate; a remand of those claims is therefore necessary in order to obtain new VA examinations and adequate medical opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Honolulu VA Medical Center, or any other Hawaiian VA medical facility that may have treated the Veteran, since his discharge from service and associate those documents with the claims file. If those records are unavailable and further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability in the claims file and the Veteran so notified. 2. Obtain any and all VA treatment records from the Brooklyn, Bronx and Manhattan VA Medical Centers, the New York Harbor Healthcare System, or any other New York VA medical facility that may have treated the Veteran, since his discharge from service and associate those documents with the claims file. If those records are unavailable and further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability in the claims file and the Veteran so notified. 3. Obtain any and all VA treatment records from the Hampton VA Medical Center since April 2011 and associate those documents with the claims file. 4. Obtain any and all VA treatment records from the Richmond VA Medical Center, or any other VA medical facility that may have treated the Veteran, since March 2016 and associate those documents with the claims file. 5. Obtain from the Social Security Administration, or other state agency administering disability benefits, the records pertinent to the Veteran's claim or claims for disability benefits as well as the medical records relied upon in considering that claim. Any negative search should be noted in the record and communicated to the Veteran. Additionally, in the event of a negative search, if it is determined that additional research requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 6. Schedule the Veteran for a VA examination with a physician in order to determine whether his claimed left foot, cervical spine and thoracolumbar spine disorders are related to service. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner must identify any and all left foot, cervical spine, and thoracolumbar spine disorders found, to include any arthritic conditions thereof. For any left foot, cervical spine, and thoracolumbar spine disorders found, the examiner should then opine whether those disorders are at least as likely as not (50 percent or greater probability) related to the Veteran's military service. The examiner should specifically address the Veteran's alleged aircraft tow machine accident that resulted in his left foot being run over and a fall injuring his back and neck. The examiner should also address the Veteran's several noted fights in service, particularly a scuffle that resulted in neck pain and abrasions of the back. The examiner may not disregard the Veteran's allegations of injuries in service solely because they are not documented in the Veteran's service treatment records, although the lack of documentation may be one of the factors considered when providing the requested opinions. All opinions must be supported by thorough rationale. 7. Schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine whether any current psychiatric disorders, to include PTSD and/or MDD, are related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found, as well as any diagnosed psychiatric disorder shown in any of the Veteran's private and VA treatment records, to include PTSD and/or any depressive disorders. For each psychiatric disorder diagnosed, the examiner must opine as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the disability commenced during or is otherwise related to military service. If PTSD is diagnosed, the examiner must identify the stressor or stressors upon which the diagnosis of PTSD is based. The examiner should specifically address the Veteran's noted treatment for a passive-aggressive personality disorder during service and whether such is an initial manifestation of any currently-present psychiatric disorder, as well as any lay evidence of record, particularly from the Veteran, with respect to the onset and continuity of symptomatology for his claimed psychiatric disorder. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 8. Schedule the Veteran for a VA examination with an appropriate sleep specialist in order to determine whether his claimed sleep disorder, to include insomnia and/or sleepwalking, is related to service. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner must identify any and all sleep disorders found, to include any insomnia and/or sleepwalking conditions. For any sleep disorders found, the examiner should then opine whether those disorders are at least as likely as not (50 percent or greater probability) related to the Veteran's military service. The examiner should specifically address the Veteran's noted treatment in service for sleepwalking, as well as any lay evidence of record, particularly from the Veteran, with respect to the onset and continuity of symptomatology regarding his claimed sleep disorders. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 9. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 2014). _________________________________________________ M. HYLAND 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).