Citation Nr: 21064457 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 06-20 081 DATE: October 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), dysthymic disorder, recurrent major depressive disorder, and anxiety, to include as secondary to service-connected left ear disabilities is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected left ear disabilities is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for residuals of a stroke is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from April 25, to July 7, 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2005, July 2005, and October 2005 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2007, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) other than the undersigned. In December 2010, the Veteran was notified of his right to request another Board hearing (the previous VLJ was no longer at the Board); and he opted for another Board hearing. 38 U.S.C. § 7107 (c); 38 C.F.R. §§ 19.3 (b), 20.707. The Veteran subsequently testified before the undersigned Veterans Law Judge at a videoconference hearing in May 2012. Transcripts of both proceedings have been associated with the claims file. The Veteran's claims have a lengthy procedural history before the Board. Most recently, the Veteran's claims were remanded by the Board in July 2021. The Board remanded the claims for the RO to obtain "any and all" Social Security Administration (SSA) records, to include non-medical records related to the Veteran's disability benefits. However, the Board finds that the RO failed to comply with the Board's remand directives as they only requested medical records before certifying the appeal to the Board, and as will be discussed further, an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD, dysthymic disorder, recurrent major depressive disorder, and anxiety, to include as secondary to service-connected left ear disabilities is remanded. 2. Entitlement to service connection for headaches, to include as secondary to service-connected left ear disabilities is remanded. 3. Entitlement to service connection for a back disability is remanded. 4. Entitlement to service connection for a heart disability is remanded. 5. Entitlement to service connection for residuals of a stroke is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In the July 2021 Board remand, the Board noted the repeated attempted failures to obtain "any and all" documentation from the SSA regarding the Veteran's disability benefits. In the remand directives, the Board explicitly requested all documentation from SSA, including medical and non-medical documents. However, in July 2021, the RO only requested medical records, for which the SSA responded that "There are no medical records." The Board finds that the RO has again failed to comply with the remand directives as they neglected to request non-medical records, including any records used to determine the Veteran's entitlement to disability benefits, such as any decisions rendered by an Administrative Law Judge. Therefore, the Board finds a remand is necessary to ensure compliance with the July 2021 remanded directives. As for the claims of entitlement to service connection for an acquired psychiatric disability and headaches, the Board finds that additional development is necessary to properly adjudicate these claims. In a January 2016 Application for Disability Compensation and Related Compensation Benefits, the Veteran contended that his claimed depression is due to his service-connected hearing and tinnitus disabilities. In November 2016, the Veteran was afforded a VA examination; however, the examiner did not offer an opinion as to whether his diagnosed major depressive disorder is at least as likely as not proximately due to or aggravated beyond natural progression by his service-connected left ear disabilities. Accordingly, the Board finds that a remand is necessary to obtain a VA examination or addendum medical opinion. As for the Veteran's headaches, throughout the entirety of the appeal, the Veteran has asserted that his headaches are concurrent with and a result of his left ear disabilities. In August 2010, a VA medical opinion was completed regarding the Veteran's headaches. The examiner indicated that he was asked to a render an opinion as to the relationship between the Veteran's headaches and his service-connected ear conditions; however, the examiner failed to offer an opinion as to whether the Veteran's claimed headaches are at least as likely as not proximately due to or aggravated beyond natural progression by the Veteran's service-connected left ear disabilities. Accordingly, the Board finds that a remand is necessary to obtain an VA examination or addendum medical opinion. The matters are REMANDED for the following actions: 1. Contact SSA to obtain copies of any decisions relating to the Veteran's claims for and eventual award of SSA disability benefits, past or present, and any decisions of SSA affecting the Veteran's benefits, not limited to medical records. When submitting the request, the RO should mark the importance of the request as higher than normal, if possible. Additionally, the directions in the message should be written, as follows: "Please send ANY AND ALL SSA records for this claimant, TO INCLUDE MEDICAL AND NON-MEDICAL RECORDS, such as those related to disability benefits decisions and award of SSA disability benefits. IF NO MEDICAL OR NON-MEDICAL RECORDS EXIST, SSA MUST EXPLICITLY STATE THAT THE MEDICAL AND/OR NON-MEDICAL RECORDS DO NOT EXIST. A generic response regarding only the status of the Veteran's medical records is insufficient." All attempts to secure this evidence must be documented in the claims file. If reasonable efforts to obtain the identified records are unsuccessful, the RO must notify the Veteran an (a) identify the specific records the RO is unable to obtain, (b) explain the efforts that the RO has made to obtain those records, (c) describe any further action to be taken by the RO with respect to the claim, and (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must be given an opportunity to respond. 2. After the above-mentioned development is completed, schedule the Veteran for a VA examination for his acquired psychiatric disability, to include major depressive disorder. If the Veteran is unable to attend a VA examination, a medical opinion will suffice. The medical examiner must review the claims file and is asked to provide a response to the following: (a) Is the Veteran's acquired psychiatric disability at least as likely as not proximately due to his service-connected left ear conditions? (b) Is the Veteran's acquired psychiatric disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected left ear conditions? Any opinion expressed should be accompanied by a complete rationale. 3. Schedule the Veteran for a VA examination for his headaches. If the Veteran is unable to attend a VA examination, a medical opinion will suffice. The medical examiner must review the claims file and is asked to provide a response to the following: (a) Are the Veteran's headaches at least as likely as not proximately due to his service-connected left ear conditions? (b) Are the Veteran's headaches at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected left ear conditions? Any opinion expressed should be accompanied by a complete rationale. 4. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.