Citation Nr: 18157070 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-12 593 DATE: December 11, 2018 REMANDED Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to an initial increased rating in excess of 10 percent disabling for service-connected chronic laryngitis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to September 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 and September 2014 rating decision, respectively, by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board finds that the issue of an increased rating for service-connected degenerative arthritis of the cervical spine has been raised by the record. In a December 2014 statement the Veteran stated that he wanted to be evaluated by a VA doctor for his cervical spine, noting that he has developed left hand numbness and loss of upper extremity strength. Unfortunately, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and this issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). 1. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. First, remand is required so that the AOJ may consider new evidence in the first instance. Evidence received by the AOJ prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated will be referred to the appropriate rating or authorization activity for review and disposition and issuance of a Statement of the Case (SOC) or Supplemental Statement of the Case. 38 C.F.R. § 19.37(a) (2018). Evidence relevant to the Veteran’s pending claim of entitlement to service connection has been added to the record since the December 2016 SOC and prior to certification of the appeal to the Board. As such, the Board finds that this issue must be remanded to the AOJ for readjudication and issuance of a SSOC. Second, remand is required for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). In this case, a physician’s statement dated in March 2017 by the Veteran’s primary care physician (PCP) noted that the Veteran has been seeking treatment for numerous ailments since separation from service, including psychiatric symptoms such as anxiety, depression, difficulty concentrating, and decreased interests. The PCP noted that the Veteran’s “depression has been an ongoing issue,” which in his opinion is “directly service related.” Additionally, the PCP also noted that the Veteran’s service-connected disabilities contribute to his depression. This is consistent with a statement dated in December 2014, wherein the Veteran indicated his depression was associated with his service-connected disabilities. Neither opinion was supported by an explanation and are thus inadequate upon which to grant service connection. In light of the foregoing, the Board finds that a medical examination and opinion commenting on the evidence of record is necessary in order to adjudicate the claim. Third, remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). In a statement dated in December 2014, the Veteran identified receiving ongoing psychiatric treatment from a private physician. Unfortunately, these records do not appear to have been associated with the record. Remand ot attempt to obtain these records is thus warranted. 2. Entitlement to an initial increased rating in excess of 10 percent disabling for chronic laryngitis is remanded. Remand is required for a current VA examination. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Passage of time alone, without an allegation of worsening, does not warrant a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) A VA examination conducted in March 2013 is the most recent examination of record pertaining to this issue. In November 2018, the Veteran, through his representative, submitted a statement requesting this matter be remanded to obtain a current VA examination due to the passage of time alone. Private medical treatment records dated in February 2016 reflect the Veteran has developed atrophy with fibrotic changes of the right vocal cord with evidence of mucosal thickening and scar formation on the vocal cords altering the Veteran’s voice. In light of evidencing of worsening by the medical evidence, the Board finds that the medical evidence of record does not adequately address the Veteran’s current level of impairment. As such, the Board finds that a remand is necessary to obtain a current examination. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Obtain the Veteran’s service treatment records. Contact the SSA and obtain a copy of that agency’s decision concerning the Veteran’s claim for disability benefits, including any medical records used to make the decision. 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 or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, including psychiatric treatment the Veteran identified as receiving with a private physician. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of any claimed psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following: (a.) Provide all currently diagnosed psychiatric disorders. (b.) For each diagnosed psychiatric disorder, the examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that each disorder had onset in, or is otherwise etiologically related to, active military service. (c.) For each diagnosed psychiatric disorder, the examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that each disorder is proximately due to, or aggravated by, the Veteran’s service-connected disabilities. The examiner must fully address the evidence of record, to include the March 2017 physician’s statement suggesting a nexus between the Veteran’s depression and service and a nexus between the Veteran’s depression and his service-connected disabilities. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected chronic laryngitis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel