Citation Nr: 1736604	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-23 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability.  

2.  Entitlement to service connection for a left leg disability. 

3.  Entitlement to service connection for a right leg disability. 

4.  Entitlement to a rating in excess of 10 percent for folliculitis barbae. 

5.  Whether the Veteran is competent to manage his Department of Veterans Affairs benefit payments. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse 


ATTORNEY FOR THE BOARD

S. Kim, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1972 to March 1974.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 and November 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina and Atlanta, Georgia, respectively.  Jurisdiction is currently in the RO in Atlanta, Georgia.  

In February 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge sitting at the RO.  

In May 2015, the Board remanded the case for additional development.  

In a January 2016 rating decision from the Appeals Management Center, the Agency of Original Jurisdiction (AOJ) granted service connection for hepatitis C and assigned a 20 percent rating effective September 19, 2006.  The Veteran did not initiate an appeal and as such, the decision represents a full grant of the benefits sought on appeal for service connection for hepatitis C, and this issue is no longer before the Board for consideration.  See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1977). 

The Board notes that additional evidence, to include VA treatment records through July 2017, was added to the record after the issuance of a March 2017 supplemental statement of the case. The Veteran is not prejudiced by the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The AOJ will have opportunity to review the additional evidence received on remand.  

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


REMAND

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 claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2016).

Acquired Psychiatric Disability 

The Veteran contends that he has an acquired psychiatric disability due to service.  Specifically, he maintains that such condition was caused by being involved in "a car accident when [he] was [stationed] in [Germany]" in 1973 as well as experiencing "pain from the physical exercise because . . . [he] wasn't military suited . . . ."  See February 2015 Hearing tr. at 16, 21. 

In a December 1972 enlistment examination report, the Veteran was found to be normal for neurological and psychiatric conditions.  In the accompanying report of medical history, he did not report any psychiatric symptoms.  A May 1973 service clinical record reflects "[the Veteran's] c/o being 'nervous' and difficulty . . .  sleeping x 1 mo."  An August 1973 service treatment record notes that the Veteran reported feeling "increasing[ly] nervous over past 2 months and . . . losing sleep."  The service treating physician noted a "[b]rief trial of Valium" at the time.  A November 1973 service clinical record shows a diagnosis of unspecified character behavior disorder.  A subsequent November 1973 physical profile record notes that the Veteran had "[a]djustment problems requiring rehabilitation."  A January 1974 separation examination report notes normal findings for psychiatric and neurological conditions.  In the accompanying report of medical history, however, the Veteran answered affirmatively to "depression or excessive worry," "nervous trouble of any sort," and "frequent trouble sleeping."  A February 1, 1974 service treatment record notes that the Veteran reported having been in an "[a]uto [a]ccident last night."  

Post-service treatment records reveal a number of diagnoses and symptoms relevant to acquired psychiatric disabilities.  A November 1983 VA examination report notes the Veteran's report of "[n]ervous problem."  A March 1991 VA treatment record notes an extensive history of substance abuse and the treating physician's finding that the Veteran's mental status exam results were "unremarkable" at that time.  A September 2006 VA treatment note reflects that the Veteran reported "PTSD (posttraumatic stress syndrome) symptoms" as result of "[e]motional abuse as a child [and being involved] . . . in a bad car wreck overseas. . . ."  Anxiety and depression symptoms were also noted at the time.  A subsequent PTSD screening test yielded a positive finding later that month.  In an August 2011 VA mental health note, the treating physician assessed that the Veteran had "[a]djustment disorder with mixed emotional features, primarily anxiety."  A September 2011 VA treating physician listed diagnoses of major depression and alcohol, cocaine, and marijuana dependence in remission.  In a December 2011 VA mental health note, the VA licensed clinical social worker assessed that the Veteran was diagnosed with "[m]ajor depression with psychotic features" as well as "[a]lcohol dependence in remission."  An August 2016 VA treatment note documents an assessment of "[a]nxiety and depression."  

While the Veteran underwent a December 2015 Disability Benefits Questionnaire (DBQ) examination for mental disorders, the examiner found that the Veteran did not have past or present psychiatric diagnoses, thereby failing to address the above-referenced psychiatric diagnoses and symptoms.  He provided a negative nexus opinion based such finding.  See September 2016 Addendum opinion.  As the December 2015 DBQ examiner's findings were predicated on inaccurate and incomplete facts, his opinion is inadequate, see Reonal v. Brown, 5 Vet. App. 458, 461 (1993), and a remand is necessary to determine the nature and etiology of all diagnoses for acquired psychiatric disabilities during the pendency of the Veteran's claim (i.e. since September 2006).  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Further, it appears that the Veteran may have received "inpatient [treatment for] 28 d[ays]" for substance abuse in Germany in 1973.  See September 19, 2006 VA mental health evaluation note.  He also reported a 1982 in-patient treatment for substance abuse in Gainville, Florida.  See id.  As the claims file currently does not contain the referenced treatment records, while on remand, the AOJ should attempt to obtain these records. 

In addition, in the February 2015 remand, the Board instructed the AOJ to obtain in-service hospital records related to a motor vehicle accident that occurred in Hanau, Germany in 1973 based on the Veteran's hearing testimony.  A February 2017 personnel information exchange system (PIES) response reflects a negative finding for the requested records.  The February 1, 1974 service treatment record suggests that the referenced motor vehicle accident may have occurred in 1974 rather than in 1973.  Therefore, on remand, the AOJ should make another attempt to search for any in-service hospital records from 1974 related to a motor vehicle accident.   

Left and Right Leg Disabilities  

The Veteran contends that the claimed left and right leg disabilities were aggravated during service.  Specifically, he has testified that prior to entering service, "[he] had rickets in [his] knees" which were "worsened as a result of [his] active duty time," to include from walking day to day and the PT (physical training)."  See February 2015 Hearing tr. at 31-32. 

The December 1972 enlistment examination report notes normal findings as to the lower extremities.  An April 1973 service treatment record documents that the Veteran was treated for his "ankles," diagnosed as "weak ankles."  A June 1973 service treatment note documents that the Veteran "fell today" and that he reported "pain over lower rt set," noting that there was no fracture seen on X-ray at the time.  A January 1, 1974 emergency service treatment record notes that the Veteran had "sutures in [his] L leg." A January 8, 1974 service treatment record notes that the Veteran was involved in an "[a]uto [a]ccident last night."  The January 1974 separation examination report notes normal findings for the lower extremities.  In the accompanying report of medical history, the Veteran reported that he experienced cramps in his legs, described as "vague cramps of extremities." 

The Board observes that as neither left nor right leg condition was noted in the December 1972 enlistment examination report, the presumption of soundness attaches, which may be rebutted only by VA's showing of clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304 (b) (2016).  

In August 2015, the Veteran underwent a DBQ examination for knees and lower leg conditions.  The examiner provided diagnoses of bilateral degenerative arthritis of knees and bilateral genu varum of knees and noted the Veteran's report that the knee conditions "began during basic training with bad knees before service."  The examiner then marked that the Veteran's right leg disability clearly and unmistakably preexisted service and were clearly and unmistakably not aggravated beyond natural progression during service.  As rationale, the examiner wrote that the noted conditions were "less likely than not aggravated . . . by service because there was no military medical record about the knee conditions [and] [t]here [were] no complaints about the knee condition when he was in active service."   This opinion is inadequate as it is unresponsive to the relevant legal criteria, i.e., whether there was clear and unmistakable evidence that the Veteran's bilateral leg disability was both pre-existing and not aggravated beyond it natural progression during service.  [Emphasis added].   The examiner also relied on the lack of documented treatment records during service and failed to address the referenced service treatment records relevant to both legs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Further, the examiner's opinion regarding the left leg is inadequate as it also relies on the lack of documented treatment records without providing an adequate rationale.  See id.  The examiner also indicated that, to the extent that the claimed bilateral leg disabilities are not found to have pre-existed service, such disabilities were less likely as not due to service.   In so doing, the examiner again relied on the absence of treatment records in her reasoning and failed to address the pertinent service treatment records.  See id.  As such, on remand, an addendum opinion is necessary to address the noted deficiencies above. 

In addition, during the February 2015 hearing, the Veteran identified pertinent knee treatment records from Thomas County Health Department.  See February 2015 Hearing tr. at 41-42.  As the record does not yet contain such records, the AOJ should undertake all efforts to obtain these records.  

Folliculitis Barbae

The Veteran was last afforded a DBQ examination for the skin disability in August 2015.  The Board finds that the examination report is inadequate for rating purposes based on the examiner's inconsistent findings.  While she marked "Yes" as to whether the Veteran required constant or near-constant use of systemic corticosteroids or other immunosuppressive medications, none of the listed medications are classified as such.  Given this inconsistency, it is unclear whether the August 2015 DBQ report sufficiently reflects the current severity of the Veteran's skin disability for an informed evaluation.   Under these circumstances, a remand is necessary to afford the Veteran a new VA examination to determine the current nature and severity of his service-connected folliculitis barbae. 

Competency 

In a November 2012 rating decision, the RO found that the Veteran was not competent to handle disbursement of funds for VA purposes, effective November 27, 2012.  In January 2013, the Veteran filed a notice of disagreement as to the November 2012 decision.  As yet, a statement of the case on this issue was not issued.  When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its decision, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26.  Thus, remand for issuance of a statement of the case on these issues is necessary.  Manlincon v. West, 12 Vet. App. 238 (1999).  However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

In addition, given the time that will pass during the processing of this remand, outstanding VA and private treatment records should be associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with a statement of the case regarding the issue of whether the Veteran is competent to manage his VA benefit payments.  Advise the Veteran of the time period in which to perfect his appeal.  If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate.

2.  Contact any appropriate source to obtain any in-patient or hospital records related to substance abuse in 1973 and related to a 1974 motor vehicle accident during service.  All reasonable attempts should be made to obtain such records. If the records do not exist or further efforts to obtain them would be futile, issue a formal finding of unavailability and notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159 (e).

3.  Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims, to include treatment records from Thomas County Health Department.  After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained

4.  After obtaining all outstanding records, return the claims file, to include a copy of this remand, to a psychiatric specialist other than the December 2015 DBQ examiner for an addendum opinion.  The need for another examination is left to the discretion of the medical professional offering the addendum opinion.  The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed.

Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions:

 (A) The examiner should determine whether the Veteran currently has or has had PTSD at any point relevant to his claim (i.e. September 2006), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal.

If PTSD is diagnosed at any point during the appeal period, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s) and must specifically address whether his identified stressor(s) are related to personal assault or a fear of hostile military or terrorist activity; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressor(s).

In this regard, the examiner should address the "PTSD symptoms" and the positive PTSD screening result noted in the September 2006 VA treatment record, based on the Veteran's reported history of "[e]motional abuse as a child [and being involved] . . . in a bad car wreck overseas . . . ."  

(B) The examiner should identify all diagnoses of acquired psychiatric disorders other than PTSD at any point relevant to his claim (i.e. September 2006), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal.

In this regard, the examiner is directed to the referenced VA treatment records documenting diagnoses for acquired psychiatric disabilities, to include, but limited to the following: 1) "nervous problem," see November 1983 VA treatment record; 2) "[a]djustment disorder with mixed emotional features, primarily anxiety," see August 2011 VA mental health note; 3) major depression and alcohol, cocaine, and marijuana dependence in remission, see September 2011 VA treatment note; 4) and "[a]nxiety and depression," see August 2016 VA treatment note.     

(C) For each currently diagnosed acquired psychiatric disability other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) such acquired psychiatric disability was related to the Veteran's military service.

The examiner should also consider and discuss all pertinent lay assertions, to include competent assertions as to the occurrence of in-service injury, and as to onset, nature, and continuity of symptoms.

All opinions expressed should be accompanied by supporting rationale.

5.  Return the claims file, to include a copy of this remand, to a specialist other than the August 2015 DBQ examiner for an addendum opinion.  The need for another examination is left to the discretion of the medical professional offering the addendum opinion.  The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed.

Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions:

(A)  The examiner should identify all diagnoses pertinent to both legs, present since the date of the claim (i.e. since March 2008), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal.

(B)  The examiner should opine whether there is clear and unmistakable evidence that the Veteran's left and/or right leg disability pre-existed service. 

(C)  If there is clear and unmistakable evidence that left and/or right leg disability or disabilities pre-existed service, then the examiner should opine whether there is clear and unmistakable evidence that the pre-existing disability or disabilities did not undergo an increase in the underlying pathology during service (i.e. was not aggravated during service).   

(D)  If there is no clear and unmistakable evidence that the disability pre-existed service, then the examiner should determine whether it is at least as likely as not that such disability is at least likely as not directly related to service. 

In answering the above questions, the examiner should address the following clinical service treatment records reflecting complaints and treatments referable to both legs: 1) the April 1973 service treatment record documenting that the Veteran was treated for his "ankles," diagnosed as "weak ankles"; 2) the June 1973 service treatment note documenting that the Veteran "fell today" and that he reported "pain over lower rt set," noting that there was no fracture seen on X-ray at the time; 3) the January 1, 1974 emergency service treatment record noting that the Veteran had "sutures in [his] L leg" 4) the January 8, 1974 service treatment record notes that the Veteran was involved in an "[a]uto [a]ccident last night"; 5) and the January 1974 report of medical history in which the Veteran reported that he experienced cramps in his legs, described as "vague cramps of extremities."

The examiner should also consider and discuss all pertinent lay assertions, to include competent assertions as to the occurrence of in-service injury, and as to onset, nature, and continuity of symptoms.

All opinions expressed should be accompanied by supporting rationale.

6.  Afford the Veteran an appropriate VA examination by a specialist to determine the current severity of his service-connected folliculitis barbae.  The claims file, to include a copy of this Remand, must reviewed by the examiner.  Any indicated evaluations, studies, and tests should be conducted.  

7.  After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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).



_________________________________________________
MARJORIE A. AUER
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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