Citation Nr: 1625449 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 11-31 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disorder classified as cyclothymic disorder to include as secondary to service connected bilateral hearing loss. 2. Entitlement to service connection for a lumbar spine disorder classified as degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from January 1982 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for a psychiatric disorder including as secondary to his service connected hearing loss and for a lumbar spine disorder as related to an injury treated in service. Regarding the claimed psychiatric disorder, the Board notes that the December 2009 VA mental disorders examination which diagnosed an Axis I cyclothymic disorder and an additional Axis II strong personality disorder characteristics, provided an incomplete opinion regarding entitlement to secondary service connection. The examiner stated that the diagnosed mental disorder was not secondary to the hearing loss which was diagnosed in 1982 in service, as there was no evidence of mental disorder complaints being manifested or treated in the years after discharge. However, the examiner failed to state whether the Veteran's psychiatric disorder has been aggravated by the hearing loss. Moreover, since this examination was conducted in 2009 the records show treatment for psychiatric problems, with bipolar disorder shown in the VA records from 2011 through 2015. See 84 page records in Virtual VA entered 8/5/15, at pages 8, 21,45, 54,65,82 for records treating bipolar disorder from 2011-2015. Thus even if the opinion was meant to include an opinion regarding aggravation, the opinion was rendered several years ago, and could not account for any aggravation that might have occurred since December 2009, including the additional treatment for a diagnosed bipolar disorder. In regards to the lumbar spine claim, the Board notes that a June 2013 VA examination was obtained that provided an unfavorable opinion that the Veteran did not have chronic residuals of a back disorder treated in service in February 1983. However it does not appear that the examiner fully addressed all the potentially favorable evidence, to include the Veteran's lay testimony at a DRO hearing held in October 2012 or the VA treatment records from September 2012 noted to give a history of low back pain for approximately 17 years. Thus on remand an addendum opinion should be obtained that fully addresses all the probative evidence. Additionally the more recent VA medical evidence reflects that there is a pending claim for Social Security Disability (SSD) benefits filed with the Social Security Administration (SSA). The record unclear for what disability or disabilities the Veteran is received SSA benefit. In light of this uncertainty, the Board finds that these records should be obtained before deciding this appeal. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) (finding that as long as a reasonable possibility exists that SSA records are relevant to the Veteran's VA claim, VA is required to assist him in obtaining them). Repeatedly the more recent VA treatment records between 2011 and 2015 have referenced a pending claim for SSA benefits. See 84 page records in Virtual VA entered 8/5/15, at pages 44, 52, 65, 81. Accordingly, the case is REMANDED for the following actions: 1. Contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 2. Obtain VA mental health records and back treatment records from August 2015 to the present. Any additional treatment records identified by the Veteran should be also obtained and associated with the claims file. 3. After completing the development in #1-#2, afford the Veteran a VA examination by a psychiatrist to determine the nature and etiology of any acquired psychiatric disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiners. Identify all current psychiatric diagnoses, including personality disorders. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. With respect to each acquired psychiatric disorder, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service, to include, to include whether it was caused, or is presently aggravated by, his service-connected bilateral hearing loss. The examiner must discuss and consider the Veteran's competent lay statements and assume such statements are credible for purposes of the requested opinions. The examiner must provide a comprehensive rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Return the claims file to the VA examiner who performed the June 2013 lumbar spine examination. If the June 2013 examiner is not available, the claims file should be provided to a VA examiner with appropriate expertise to render a medical opinion in this case. After reviewing the claims file, the examiner should issue an addendum medical opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's currently diagnosed lumbar spine disorder is related to any incident of active duty service, to include treatment for low back pain in February 1982. For the purposes of this opinion, the examiner should accept the Veteran's statements regarding his in-service injuries and symptoms as true. The addendum medical opinion must be accompanied by a full explanation. The examiner should reference specific evidence in the claims file to support the medical opinion and/or discuss what characteristics of the Veteran's back disability do not support an in-service etiology. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Finally, readjudicate the Veteran's service connection issues based on the entire record. If the benefits sought on appeal remains denied, issue an SSOC and provide the Veteran and his representative an opportunity to respond before returning to the Board, if otherwise 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. 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). _________________________________________________ P. SORISIO 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).