Citation Nr: 1636185 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 10-43 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a psychiatric disorder to include schizophrenia and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from July 1983 to February 1984. The Veteran had subsequent Montana Army National Guard (ANG) and Wyoming ANG service. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for schizophrenia and depression. In an August 2012 rating decision, the RO denied service connection for schizophrenia and depression as secondary to tinnitus, middle ear disease, or perforation, right ear. While the RO treated the secondary service connection claim as separate from the claim on appeal, the Board in its prior remand in October 2015 noted that a separate theory of entitlement for service connection for the same disability is not a separate claim. See generally, Boggs v. Peake, 520 F.3d 1330, 1335 (Fed.Cir.2008) (new theory of causation of a previously denied claim cannot be the basis of a new claim). The Board herein also considers the issue of service connection for psychiatric disability as secondary to his service-connected bilateral hearing loss, as explained in the body of the Remand, below. These secondary theories of causation remain part of the claim. In August 2015, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Medical evidence of record and conclusions of a VA psychological examiner in January 2016 are to the effect that the Veteran was hospitalized via the emergency room in a psychotic state in February 1989 at Sheridan Memorial Hospital, Plentywood, Montana, and that he was transferred to Montana State Hospital in Warm Springs, where he was a psychiatric inpatient from March to April of 1989. The record does not reflect a documented history of a psychotic condition prior to February 1989. The Veteran has asserted that the condition began within a few days following a period of ACDUTRA, and hence efforts have been made, including by the Board's prior remand in October 2015, to determine dates of ACDTRA in 1989. Records obtained from the Montana Army National Guard include documentation of dates of ACDUTRA only up to 1987, even though the Veteran is documented to have separated from National Guard service in 1992. The Veteran is shown by service personnel records to have earned 15 active duty points between May 20, 1988, and May 19, 1989. State National Guard memoranda indicate it is likely his service personnel records were transferred from the Montana Army National Guard to the Wyoming Army National Guard due to his transfer from the Montana Army National Guard to the Wyoming Army National Guard in January 1990. An Army National Guard separation document indicates that the Veteran was separated from the Wyoming Army National Guard in May 1992 due to medical disqualification. Pursuant to the Board's remand, requests were made to the Montana Army National Guard for records informing of the dates of ACDUTRA in 1989. Such dates could not be obtained from that source, with the Montana Army National Guard informing that they did not have records of ACDUTRA for that period. Based on the state National Guard memoranda and the state National Guard transfer records, it now appears possible that any such records documenting the Veteran's dates of ACDUTRA in 1989 were transferred to the Wyoming Army National Guard. Hence, this information should be sought from the Wyoming Army National Guard. They were not sought from that source following the Board's remand, and hence a second remand is required for this purpose. Additionally, Social Security Administration records reflect that the Veteran has significant difficulties with functioning and social interaction as a result of his service-connected severe hearing loss, with the result that the Veteran has ceased to engage in most activities. These records further inform of the Veteran's detachment from essentially all social interactions and productive activities. Thus, a theory of secondary causation based on aggravation of the Veteran's mental disorder by his service-connected bilateral hearing loss is for consideration. 38 C.F.R. § 3.310 (2015). Thus, an addendum opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Attempt to secure records of the Veteran's periods of ACDUTRA from official sources with the Wyoming Army National Guard (ANG), to include records which may have been transferred from the Montana ANG to the Wyoming ANG. If the records are determined to be unavailable, issue a formal finding of unavailability documenting such, and notify the Veteran and his representative accordingly. 2. Request relevant VA treatment records not yet obtained, including ongoing records from the Salt Lake City VA health care system (HCS) since March 2016, and associate them with the electronic claims file. If any requested records are not available, the Veteran should be notified of such. 3. After the foregoing development has been completed to the extent possible, return the claims file to the examiner who conducted the January 2016 mental disorders examination, if available, to obtain an addendum opinion. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. If the examiner is not available, the file should be provided to another psychologist or to a psychiatrist to obtain the addendum. Following review of the claims file, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that it was caused by his service-connected bilateral hearing loss? Please explain why or why not. (b) If the Veteran's psychiatric disorder was not cause by the service-connected bilateral hearing loss, is it at least as likely as not that it has been permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by the bilateral hearing loss? Please explain why or why not, to include commenting on the findings in psychiatric evaluations contain in the Social Security records regarding the Veteran's detachment from both social interactions and productive activities attributed in part to the Veteran's hearing impairment. (c) If the examiner finds that the Veteran's psychiatric disorder has been permanently worsened beyond normal progression (aggravated), then the examiner should attempt to quantify the increase in severity of psychiatric disability (thus the degree of aggravation) beyond the baseline level of psychiatric disability that would have existed but for the bilateral hearing loss. 4. If, and only if, the dates of ACDUTRA between May 20, 1988 and May 19, 1989 have been verified, then an opinion should also be requested from the above examiner as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran currently has a psychiatric disorder that had its onset in or is related to that period of ACDUTRA. A rationale for the opinion expressed should be provided. 5. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated, to include consideration of the claim for service connection for schizophrenia and depression as secondary to bilateral hearing loss. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given an appropriate period to respond thereto before the case is returned to the Board, if in order. 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). _________________________________________________ K. A. BANFIELD 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).