Citation Nr: 1641086 Decision Date: 10/20/16 Archive Date: 11/08/16 DOCKET NO. 12-13 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for human immunodeficiency virus (HIV) infection. 2. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to HIV infection. 3. Entitlement to service connection for a bilateral wrist disability, to include as secondary to HIV infection. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, M.S. and P.M. ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to November 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. These matters were previously remanded by the Board in October 2014. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2014. A transcript of that hearing is of record. The issue of entitlement to service connection for a bilateral wrist disability has been recharacterized to include as secondary to HIV infection because the Board interprets the Veteran's May 2012 VA Form 9 as indicating the Veteran's belief that the wrist condition can be attributed to HIV infection. Additionally, a March 2015 VA treatment note opined that the Veteran's wrist pain was most likely caused by inflammatory arthritis associated with either Hepatitis C or HIV versus early osteoarthritis. The issue of entitlement to service connection for a back disability has been raised by the record in a September 2016 statement, 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). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A June 2015 VA treatment note indicates that the Veteran has been in receipt of disability benefits from the Social Security Administration (SSA) for years. Records related to these disability benefits have not been obtained by the Board. In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the U.S. Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records that may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). As the Veteran's SSA records may have a bearing on his claims for VA disability benefits, the AOJ should attempt to obtain documents related to his application for SSA benefits. The January 2015 VA examination as to bilateral wrist disability provided a negative opinion, finding that there is no evidence in the Veteran's service treatment records (STRs) of complaint or treatment of a wrist condition, and that the Veteran was not treated for wrist pain until 2009. This opinion does not consider the Veteran's hearing testimony that he initially experienced wrist pain in service. The Veteran is competent to relate his experience of wrist pain. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the rationale is inadequate because the examiner has not explained why the length of time between separation from service and treatment for a wrist condition supports the conclusion that the wrist disability is not related to service. Additionally, as the Veteran has testified that he was put on a typing profile due to this wrist pain, his service personnel records should be obtained to determine whether there is any documentation that the Veteran's duties were altered due to wrist pain affecting his ability to type. The January 2015 VA addendum psychiatric opinion found that the Veteran's acquired psychiatric disability was not incurred in or otherwise related to the Veteran's military service because the Veteran related his mental disorder symptoms to his HIV diagnosis, which did not occur until 5 years after service. This opinion does not consider the October 1985 notation in the Veteran's STRs of situational depression, or the November 1985 assertion of depression in the Veteran's report of medical history. Although the STRs also contain a November 1985 treatment note stating that the Veteran presented no psychiatric disorder, the notations of depression should still be considered. Upon remand, a supplemental opinion should be obtained that discusses the psychiatric notations in the Veteran's STRs. The claims folder should also be updated to include VA treatment records compiled since July 9, 2015. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all treatment records for the Veteran from the Bay Pines VA Healthcare System and all associated outpatient clinics dated from July 9, 2015 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. Contact the Social Security Administration and request the Veteran's Social Security disability benefits records, including all medical documents and decisional documents. All attempts to obtain the records should be documented in the file. If no records are found and additional requests for Social Security records would be futile, notify the appellant in accordance with 38 C.F.R. § 3.159(e). 3. Contact the National Personnel Records Center (NPRC) or any other appropriate source and request the Veteran's complete service personnel records in order to determine whether the Veteran's duties were altered to reflect difficulty typing due to wrist pain. All attempts to secure the personnel records must be documented in the claims file. If the personnel records are not available, a formal finding of unavailability should be prepared and associated with the claims file. The Veteran should be informed of any negative results. 4. After completing the above remand instructions, forward the claims file to the January 2015 VA examiner as to wrist disability, if available, or another appropriate VA clinician. The clinician is to review the claims file, and provide a supplemental opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral wrist disability was incurred in or is otherwise etiologically related to service. The clinician is to consider the Veteran's competent hearing testimony that he began experiencing wrist pain during service, which he attributes to excessive typing. The clinician must also provide a supplemental opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral wrist disability is proximately due to, or chronically aggravated by his HIV infection. Any opinion offered must be supported by a complete rationale, containing not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. It is not sufficient to cite a long period of time between separation and treatment for wrist disability without explaining why the length of time between separation and treatment supports the conclusion offered. 5. Thereafter, forward the claims file to the December 2014 VA examiner who also provided the January 2015 supplemental opinion, or another appropriate VA clinician. After reviewing the claims file, the clinician is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder was incurred in or is otherwise related to service. The clinician is to discuss the October 1985 notation in the Veteran's STRs of situational depression, the November 1985 notation of the Veteran presenting with no psychiatric disorder, and the November 1985 report of medical history in which the Veteran indicates that he has a history of depression or excessive worry. The clinician must also provide a supplemental opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder is proximately due to, or chronically aggravated by his HIV infection. Any opinion offered must be supported by a complete rationale. 6. After completing all of the above development, readjudicate the issues on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ U. R. POWELL 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).