Citation Nr: 1806236 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-02 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for acute situational depression (claimed as a nervous condition), to include whether the appeal should be reconsidered. 2. Entitlement to service connection for a lung disorder, to include bronchitis, to include as due to asbestos exposure. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a disability manifested by amnesia and/or memory loss. 5. Entitlement to service connection for a stomach disorder. 6. Entitlement to service connection for a neck disorder. 7. Entitlement to service connection for a thoracolumbar spine disorder. 8. Entitlement to service connection for a right knee disorder. 9. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to April 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By that rating action, the RO, in part, declined to reopen a previously denied claim for service connection for acute situational depression. The RO also denied service connection for the claimed disabilities on appeal. The Veteran appealed these determinations to the Board. A hearing was held before the undersigned Veterans Law Judge at the RO in August 2015. A transcript of the hearing is of record. In January 2016, the Board, in part, remanded the new and material and service connection claims on appeal. The appeal has returned to the Board for further appellate consideration. 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 prior to further appellate review of the claims, additional substantive development is required. First, a remand is required to have the RO issue a Statement of the Case (SOC) that addresses the issue of whether new and material evidence has been received to reopen a previously denied claim for service connection for acute situational depression (claimed as a nervous condition). In January 2016, the Board directed VA to issue an SOC that addressed the above-cited issue. Thereafter, the RO issued a Supplemental Statement of the Case (SSOC) in June 2017. This was a procedural error. The SSOC expressly stated that it was "not a decision on any new issues, but it is intended to inform you of any material changes in, or additions to, the information contained in the SOC we previously sent you." This is incorrect as this issue not yet currently on appeal; the Veteran must submit a substantive appeal in order to perfect an appeal of this issue. See e.g., Manlincon v. West, 12 Vet. App. 238 (1999). By issuing an SSOC instead of an SOC, VA did not comply with the Board's directive, thereby circumventing appellate requirements. Therefore, a remand is required to have the RO issue an SOC. Second, regarding each of the claims on appeal, remand is required to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C § 5103 (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159 (c)(2); 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). In a handwritten statement, received by VA in July 2017, the Veteran reported that he had recently sought treatment for his disabilities from the VA Medical Center (VAMC) in Tuskegee, Alabama. Although treatment records from this VAMC, dated through June 2016 are of record, more recent reports are absent. As these records are potentially relevant to the service connection claims on appeal, remand is necessary to obtain these records. Third, regarding the claims for service connection for PTSD and a disability manifested by amnesia and/or memory loss, a remand is required to obtain an addendum opinion. In its January 2016 remand directives, the Board requested that the Veteran be scheduled for a VA psychiatric examination. The Board also requested that for each diagnosed psychiatric disability (other than PTSD) the examiner must state whether it was at least as likely as not (50 percent probability or greater) that is was manifested in, or was otherwise related to, his period of military service. VA examined the Veteran in August 2016. After a mental status evaluation of the Veteran and review of the entire record, notably service treatment records showing that he had received treatment for anxiety and depression while undergoing disciplinary actions, and post-service treatment for nerves and depression since 2007 with diagnoses of PTSD and an adjustment disorder, the August 2016 VA examiner diagnosed with major depressive disorder (MDD). The VA examiner opined that the MDD was not related to service because there was no report of mental health issues during the Veteran's military service and no consistent report of ongoing mental health problems since service discharge. The VA examiner also concluded that the symptoms for PTSD were not found in the medical records. The Board finds the examination inadequate as the opinon for MDD is internally inconsistent as the August 2016 VA examiner reported that the Veteran had received treatment for anxiety and depression during service while undergoing disciplinary actions and then stated as support for the etiological that there was no report of mental health issues during military service. The VA examiner also did not discuss which symptoms are required for a diagnosis of PTSD, and did not discuss whether the Veteran's claimed amnesia and/or memory loss were symptoms of a diagnosed psychiatric disorder, as opposed to a separately diagnosable disorder. Thus, the Board finds that the claims for service connection for PTSD and a disability manifested by amnesia/memory loss must be remanded to obtain a supplemental opinion. Fourth, remand is required to obtain an addendum opinion regarding the lung disorder. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case addressing the issue of whether new and material evidence has been received to reopen a claim for service connection for acute situational depression (claimed as a nervous condition), to include whether the claim should be reconsidered. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. Advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. 2. Obtain and associate with the claims file any records of the Veteran from VA facilities, to include the VAMC in Tuskegee, Alabama, dated from June 2016 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. After any additional records are associated with the electronic record, obtain an addendum opinion regarding the etiology of the any current psychiatric disorder, recently diagnosed as major depressive disorder from the examiner who authored the August 2016 VA Mental Disorders DBQ or another similarly qualified medical practitioner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. Specifically, the August 2016 VA examiner or other qualified medical practitioner must explain which symptoms required for a diagnosis of PTSD the Veteran does or does not experience. The PTSD diagnosis is deemed appropriate, the examiner must comment on the link between the current symptomatology and any verified in-service stressor. If the question cannot be answered without resorting to pure speculation, the August 2016 examiner or other qualified medical practitioner must provide a complete explanation as to why that is so. The August 2016 VA examiner or other qualified medical practitioner must discuss whether the Veteran's claimed amnesia and/or memory loss are symptoms of a diagnosed psychiatric disorder, as opposed to a separately diagnosable disorder. See, e.g., August 2015 Transcript at pages 23-25; see also March 1975 separation examination (noting Veteran's reported history of "amnesia"). If the August 2016 VA examiner or other qualified medical practitioner deems additional examinations are warranted by a different examiner, such shall be ordered. 4. Ensure that the addendum report fully complies with these remand directives. The AOJ must ensure that the examiners document their consideration of the Veteran's paperless claims file. If the report is insufficient, it must be returned to the examiners for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate, readjudicate the claims. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). These claims 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. MILLIKAN 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) (2017).