Citation Nr: 22018664 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-25 207 DATE: March 30, 2022 REMANDED Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a right foot condition, including as secondary to neck condition is remanded. Entitlement to service connection for depression, including as secondary to neck condition is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1980 to February 1983, with additional service in the Reserves. The case is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2019 and September 2021, the Board remanded the claims for further development and has now been returned to the Board. Although the Board regrets the additional delay, another remand is required. (CONTINUED ON NEXT PAGE) 1. Entitlement to service connection for a neck condition 2. Entitlement to service connection for a right foot condition, including as secondary to neck condition The Veteran contends that he has a neck condition and foot condition that are related to his service. The Veteran also claims that his right foot condition is secondary to his neck condition. The record indicates that the Veteran was awarded disability benefits from the Social Security Administration. However, the claims file does not contain a decision to grant or deny SSA benefits or the medical records upon which that determination was based. Nor does it appear that an attempt has made to obtain them. VA has a duty to obtain SSA records when they may be relevant to a claim. The possibility that SSA records could contain evidence relevant to the appellant's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Therefore, the Board finds that an attempt should be made to obtain any available SSA records. 38 C.F.R. § 3.159(c)(2). 3. Entitlement to service connection for depression, including as secondary to neck condition The Veteran contends that he has depression as a result of his service. In the alternative, the Veteran contends that his depression is secondary to his neck condition. The Veteran's service treatment records show that he had an unexcused absence for one day in August 1980 and for two days in November 1980. He has further indicated that he first sought mental health treatment during service while stationed in Germany. See February 2020 VA mental health examination. His representative has argued that the Veteran began seeking drug and alcohol treatment during his active service. See March 2022 Appellate Brief. Typically, active duty mental health and substance abuse treatment records are stored separately from a veteran's service treatment records. On remand, attempts to obtain these records must be made. In September 2019, the Board remanded the issue in order to provide the Veteran with an examination to determine the nature and etiology of his depression. The examiner was directed to opine whether the Veteran's depression was caused or aggravated by his neck condition or was otherwise related to service. The Veteran was provided with a VA mental disorders examination in February 2020 where he was diagnosed with peristent depressive disorder. The VA examiner found that the Veteran's depression was at least as likely as not caused by his neck condition. However, the examiner did not provide an opinion regarding whether the Veteran's depression was related to his service. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Take all steps in accordance with VA regulation to obtain the Veteran's records from: (a) Mental health and/or substance abuse treatment during active duty service; and (b) Social Security Administration disability benefits records. If any records are unable to be obtained or it is determined that that further attempts to obtain them would be futile, prepare a Memorandum of Formal Finding of Unavailability and associate it with the evidence of record before the Board. 2. Following completion of step 1, afford the Veteran a new mental health examination to determine the etiology of his depressive disorder. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. Following a review of the record and with consideration of the Veteran's statements, the examiner should provide the following opinions: (a) Is the Veteran's depressive disorder related to his active duty service? Why or why not? (b) Did the Veteran's depressive disorder manifest within one year of separation from active duty service (by February 1984)? Why or why not? The examiner is that an opinion finding a nexus to service (including whether the psychiatric disorder manifested within one year of separation from active duty) does not require certainty. Rather, if the evidence is in approximate balance both for and against a negative opinion, the examiner should provide an opinion favorable to the Veteran. A clear rationale for each opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J. O'Connell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.