Citation Nr: 1749045	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  15-18 010	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for hypertension, to include as secondary to psychiatric disability.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David Nelson, Counsel


INTRODUCTION

The Veteran served on active duty from November 1977 to October 1980.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  This case was most previously before the Board in October 2016.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system.  The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal.

In July 2012 the Veteran presented personal testimony at a videoconference hearing at the RO before a different Veterans Law Judge (VLJ).  The issues included whether new and material evidence had been submitted to reopen the claims of service connection for hearing loss and for hypertension, and entitlement to service connection for a left eye disorder.  In an October 2014 decision, the Board denied the request to reopen the claim for service connection for hypertension, granted the request to reopen the claim for service connection for bilateral hearing loss, and remanded the claims for service connection for a left eye disorder and for bilateral hearing loss.  The Veteran did not appeal the denial of the hypertension claim.

The second hearing, in September 2015, was held before the undersigned VLJ.  At that hearing, the issues addressed included the newly reopened claim for service connection for hearing loss, the claim for service connection for PTSD, the claim for service connection for a left eye disorder, and service connection for hypertension, as secondary to PTSD.

An October 2015 Board decision reopened the claim of service connection for hypertension and remanded that claim as well as the claims of service connection for hearing loss and PTSD for further development.

In February 2017 the Veteran presented testimony before another VLJ that addressed the issue of service connection for a left eye disorder.  The issue of service connection for left eye disorder will be the subject of a separate Board panel decision.

The Board notes that the issue on appeal is entitlement to service connection for PTSD, and not service connection for any diagnosed psychiatric disorder.  Historically, service connection for a nervous condition was denied in a January 1994 rating decision.  That rating decision addressed major depression with psychotic features and schizoaffective disorder and is final.  As noted in the October 2016 Board remand, the issue regarding PTSD was not a claim to reopen, but a claim for service connection.  Thus, other psychiatric disorders are not for consideration herein.  See Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996) (holding that "a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be the same claim when it has not been previously considered").

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

First, remand is required to attempt to obtain Social Security Administration (SSA) records.  In a statement received in March 2017 the Veteran specifically requested that VA obtain his SSA records, and such request was also made in the Veteran's representative's March 2017 Informal Hearing Presentation.  As the SSA records may be relevant to the current appeal, pursuant to the duty assist, the records should be requested.  See 38 C.F.R. § 3.159(c)(2) (2016); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).

Second, the Veteran has requested that VA obtain treatment records from his private physician, WL, MD.  The Board notres that many such records dated through March 11, 2015 are already associated with the claims file, and the Board finds that updated records should be obtained.

Accordingly, the case is REMANDED for the following action:

1.  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 her representative.

2.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after February 8, 2017.  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 her representative.  

3.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  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 her representative.

4.  Ensure compliance with the directives of this remand.  If a report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

5.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issues on appeal must be readjudicated.  If any of the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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).

This claim 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) (2016).



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