Citation Nr: 1803231 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-31 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for Grave's disease (hypothyroidism, claimed as thyroid condition). 2. Entitlement to service connection for right hip disability (claimed as bilateral hip condition). 3. Entitlement to service connection for left hip pain disability (claimed as bilateral hip condition). 4. Entitlement to service connection for right knee degenerative joint disease (DJD) disability (claimed as right knee condition). 5. Entitlement to service connection for an acquired psychiatric disorder. 6. Entitlement to service connection for DJD and degenerative disc disease (DDD) of the lumbar spine (claimed as lower back injury). 7. Entitlement to service connection for migraine headaches (claimed as migraine condition). REPRESENTATION The Veteran represented by: Michael A. Steinberg, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to September 1987. In addition, at the October 2017 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran indicated she was in the Army Reserves for approximately three years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction has since been transferred to the Detroit, Michigan RO. The Veteran testified at a travel board hearing before the undersigned VLJ in October 2017. A transcript of the hearing is of record. The Board has expanded the Veteran's claim for entitlement to service connection for a psychiatric condition to entitlement to service connection for an acquired psychiatric disorder, however diagnosed, pursuant to Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). The issue has been recharacterized on the title page. The issue of entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). In March 2011, the Veteran submitted statements that problems from active duty service placed her in a state of physical inability to support herself or her family. In August 2011, the RO sent her a letter asking her to fill out an attached VA Form 21-4138, if she was seeking a TDIU. In September 2011, the Veteran provided a VA Form 21-4138, signed by a doctor, stating the Veteran had a significant medical history of unemployment due to diabetes mellitus, urticarial with intermittent flares, palpitations/ aortic valve disorders, chronic pain syndrome: mastodynia, knee arthralgia and chronic back pain related to intervertebral disk displacement. In addition, the letter stated that the Veteran reports that she is unable to sit or stand for any length of time due to chronic pain and that the physician does not disagree with her statement. However, the issue of TDIU has not been adjudicated by the AOJ, thus it is referred for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is needed before final adjudication of the Veteran's appeal. Specifically, the Board finds that additional records must be obtained and associated with the claim file, and that the Veteran is entitled to new examinations regarding her claimed disabilities. First, the Board finds that additional VA and private treatment records must be obtained. At the October 2017 travel board hearing, it was confirmed that the Veteran continues to receive VA and private treatment. It was suggested at the hearing that treatment records were going to be submitted the day of the hearing. However, it does not appear that these records have been associated with the claim file. As these records are still outstanding, the Board will remand to obtain them. In addition, at the hearing it was confirmed that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). Normally, VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 38 C.F.R. § 3.159 (c). Therefore, the Board will remand to obtain these records. Further, during the October 2017 hearing, the Veteran testified that she was in the Army Reserves for three years after service. She also testified that during that time she received treatment for back and knee pain. However, the claim file does not contain these records. The Board will remand to obtain the additional service and treatment records. Following the above development, the Board finds that the Veteran should be scheduled for additional VA examinations to address the etiology of her claimed disabilities. The Veteran was afforded a VA examination in July 2011 for her claimed psychiatric disabilities, and additional VA examinations in August 2011for her claimed low back, right knee, headaches, and thyroid disabilities. The Board notes that there is no nexus opinion regarding the claimed hip disability. In addition, at the October 2017 hearing, the Veteran indicated that many of her service connection claims were based on a theory of both direct and secondary service connection. Therefore, particularly given the incomplete record at the time of the August 2011 examinations and the Veteran's clarified theories of entitlement, the Board finds that new examinations are in order. Accordingly, the appeal is REMANDED for the following action: 1. After obtaining the necessary consent, the following documents and records should be obtained and associated with the claim file. All efforts to obtain these records should be documented in the claim file. If the records cannot be obtained, this should be noted in the claim file and the Veteran should be informed in writing. (a) Any outstanding private and VA treatment records. (b) Records from the SSA pertaining to any award of disability benefits to the Veteran. (c) Any outstanding military personnel records and service treatment records, specifically those pertaining to the Veteran's claimed service in the Army Reserves. The Veteran has indicated such service between 1987 and 1990. 2. After completion of the above development, schedule the Veteran for the following VA examination(s): (a) An examination to address the etiology of the Veteran's claimed Grave's disease (hypothyroidism, claimed as thyroid condition) disability. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's claimed Grave's disease was caused by her active duty service or, if preexisting service, was aggravated therein. (b) An examination to address the etiology of the claimed right hip disability. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed right hip disability was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed right hip disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed Grave's disease. (c) An examination to address the etiology of the claimed left hip pain disability. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed left hip pain disability was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed left hip pain disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed Grave's disease. (d) An examination to address the etiology of the claimed right knee DJD disability. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed right knee DJD disability was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed right knee DJD disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed Grave's disease. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed right knee DJD disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed lumbar spine disability. (e) An examination to address the etiology of the claimed acquired psychiatric disorder. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed acquired psychiatric disorder was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed acquired psychiatric disorder is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed Grave's disease. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's acquired psychiatric disorder is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed lumbar spine, right and left hip, right knee, or migraine headaches disabilities. (f) An examination to address the etiology of the claimed DJD and DDD of the lumbar spine disability (claimed as lower back injury). The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed lumbar spine disability was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed lumbar spine disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed Grave's disease. (g) An examination to address the etiology of the claimed migraine headaches disability. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed migraine headaches disability was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed migraine headaches disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's claimed Grave's disease. For all examinations, all necessary development should be taken. The VA examiner should be given access to the claim file and given a copy of this remand. The examiner should state that a review of the claim file and remand was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).