Citation Nr: 18132252
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-09 942
DATE:	September 6, 2018
REMANDED
Entitlement to service connection for an acquired psychiatric disorder (originally claimed as a personality disorder with mild memory loss, to include as secondary to service-connected disabilities is remanded.
Entitlement to service connection for bilateral wrist scars is remanded.
Entitlement to an initial disability rating in excess of 20 percent for a low back disability, to include an effective date earlier than August 27, 2013 for the award of service connection is remanded.
Entitlement to an initial disability rating in excess of 20 percent for left lower extremity (LLE) radiculopathy, to include an effective date earlier than August 27, 2013 for the award of service connection is remanded.
Entitlement to an initial disability rating in excess of 20 percent for right lower extremity (RLE), to include an effective date earlier than August 27, 2013 for the award of service connection is remanded.
Entitlement to an initial compensable disability rating for migraine headaches, to include an effective date earlier than October 27, 2013 for the award of service connection is remanded.
Entitlement to service connection for tinnitus is remanded.
Entitlement to specially adaptive housing or specially adaptive grant is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Navy from July 1967 to December 1970, and from May 1976 to March 1978.
These matters come before the Board of Veterans Appeals (Board) on appeal, in part, from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  By that rating action, the RO denied service connection for a personality disorder with symptoms of mild memory loss and bilateral wrist scars.  The Veteran appealed this rating action and the RO’s determinations therein to the Board.  
This appeal also stems from a January 2015 rating action.  By that rating action, the RO granted service connection for a low back disability and LLE and RLE radiculopathy; each disability was assigned an initial 20 percent disability rating, effective from August 27, 2013--the date of receipt by VA of the Veteran’s initial claim for compensation for these disabilities.   The RO also awarded service connection for migraine headaches; an initial noncompensable disability rating was assigned, effective October 17, 2013--the date of receipt by VA of the Veteran’s initial claim for compensation for this disability.  The RO denied service connection for tinnitus.  The Veteran appealed the RO’s initial 20 percent and noncompensable disability ratings assigned to the above-cited service connected disabilities and the effective dates of August 27, 2013 (low back disability and LLE and RLE radiculopathy) and October 17, 2013 (migraine headaches) and denial of service connection for tinnitus to the Board. 
Finally, this appeal stems from a September 2017 rating action.  By that rating action, the RO denied entitlement to specially adaptive housing and special home adaptation grant.  The Veteran appealed this rating action and the RO’s determinations therein to the Board. 
In an August 2018 statement to VA, the Veteran waived initial RO consideration of all evidence received since the RO’s issuance of January 2015 and April 2016 Statements of the Case (SOCs) that addressed the service connection, initial rating and earlier effective date claims on appeal.  Thus, a remand to have the RO initial consider this evidence is not required.  38 C.F.R. §§ 19.37; 20.1304 (2017).  
In a September 2015 opinion, Dr. H. H.-G. opined that the chronic pain from the Veteran’s service-connected problems had very clearly aggravated his mental problems.  (See September 2015 opinion, authored by Dr. H.-H.G.).  Thus, the Board has recharacterized the claim for service connection for an acquired psychiatric disability to reflect the secondary service connection theory, as noted on the title page.  Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board must address all theories of entitlement explicitly raised by the claimant and raised by the record).
Although the Board regrets the additional delay, another 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. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 
First, the Board finds that a remand is required to obtain outstanding Social Security Administration (SSA) records.  The record shows that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits.  (See SSA’s letter to the Veteran, received into the Veteran’s VBMS electronic record on December 4, 2013).   The Veteran’s record does not contain any records from SSA and it does not appear any attempt to obtain those records has been made.  As it is reasonably possible that the records relate to the Veteran’s issues on appeal, they must be obtained prior to adjudication.  Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (“As long as a reasonable possibility exists that the records are relevant to the veteran’s claim, VA is required to assist the veteran in obtaining the identified records.”).  Accordingly, on remand, the AOJ should attempt to obtain all available SSA records. 
Second, a remand is also required to schedule the Veteran for a VA examination of his service-connected lumbar spine disability that is consistent with the holding of the United States Court of Appeals Claims’ (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016).  VA last examined the Veteran’s lumbar spine disability and RLE and LLE radiculopathy in January 2015.  (See January 2015 Thoracolumbar Spine Disability Benefits Questionnaire (DBQ).  The Board notes that findings from the January 2015 VA examination appear insufficient to assess the Veteran’s lumbar spine in passive motion, and (where relevant) weight-bearing and nonweight-bearing settings.  Accordingly, the Veteran should be afforded another VA examination to assess the current nature and severity of the service-connected low back disability.  Id.  
Third, the Board finds that a remand is necessary to schedule the Veteran for another VA psychiatric examination to determine the nature and etiology of all diagnosed acquired psychiatric disorder(s) found on examination. 
The Veteran claims that he has an acquired psychiatric disorder that had its onset during his periods of active service.  
Under pertinent law and regulations, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service.  38 U.S.C. § 1111.  When no preexisting condition is noted upon entry, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises.  If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches.  VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C. § 1111.
The Veteran’s service treatment records (STRs) pertinently include March 1967 and December 1970 service enlistment and separation examination reports, respectively, reflecting that he was evaluated as psychiatrically “normal.”  On a March 1967 Report of Medical History, the Veteran denied having had depression or excessive worry; trouble sleeping; frequent nightmares; and, nervous trouble of any sort.  The remainder of the Veteran’s STRs from his initial period of active military service are devoid of any subjective complaints or clinical findings referable to any psychiatric disability.  An April 1976 service enlistment examination report for the Veteran’s second period of military service reflects that he was found to have been “psychiatrically normal.”  On an April 1976 Report of Medical History, the Veteran denied having had having had depression or excessive worry, trouble sleeping; frequent nightmares; and, nervous trouble of any sort.  In mid-April 1977, the Veteran was seen for an acute situational reaction.  From late April to May 1977, the Veteran was hospitalized after he had attempted suicide by ingesting pills (Donnatal).  At that time, it was noted that the Veteran was experiencing marital difficulty.  At discharge in late May 1977, he was diagnosed with depression with suicide attempt.  In late January 1978, the Veteran attempted suicide for a second time by ingesting pills (Valium).  The examining clinician noted that the Veteran had recently learned that his father, who had terminal cancer, had recently attempted suicide.  At discharge, the Veteran was diagnosed with an emotionally unstable personality disorder that had existed prior to enlistment and had not been aggravated by a period of military service.  The Veteran was found unsuitable for further military service. 
The post-service evidence of record includes VA and private examiners’ opinions that are against and supportive of the claim.  However, and as explained in more detail below, as neither opinion is adequate to decide the claim, the Board finds that a remand is necessary in order to afford the Veteran a new VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder.
VA examined the Veteran to determine the etiology of any currently diagnosed acquired psychiatric disability in December 2014.  The VA examiner indicated that he had reviewed the Veteran’s STRs, military personnel records, reflecting that the Veteran had undergone several disciplinary actions during his initial period of military service, and post-service evidence of record.  The VA examiner opined that the Veteran’s only diagnosed disorder was an unspecified personality disorder that was less likely than not (i.e., less than 50-50 chance) related to or caused by, or permanently aggravated beyond the course of its disorder by military service.  (See December 2014 VA Mental Disorder Disability Benefits Questionnaire).  
Evidence in support of the claim includes a September 2015 opinion, authored by Dr. H. H-G.  After a mental status evaluation of the Veteran and review of medical treatise evidence, Dr. H. H-G opined that the Veteran might have had a personality disorder prior to service but that it was clear that it had worsened during his second period of service.  According to Dr. H. H-G. during the Veteran’s second period of service, he developed depression that had aggravated his personality disorder.  Dr. H. H-G. ultimately concluded that the Veteran had suffered from unspecified depressive and personality disorders that more likely than not began during service and had continued since that time.  (See Dr. H. H-G.’s September 2015 opinion, labeled as “Correspondence” and received into the Veteran’s VBMS electronic record on February 16, 2016).  
The Board finds the December 2014 VA examiner’s and Dr. H. H.-G.’s September 2015 opinions to be of reduced probative value in evaluating the claim for service connection for an acquired psychiatric disability because neither clinician applied appropriate “clear and unmistakable evidence” standard in formulating their respective opinions.  Thus, a new VA examination must be scheduled. 
Finally, the Board finds the earlier effective date issues and issues of entitlement to specially adapted housing and entitlement to automobile/adaptive equipment are inextricably intertwined with the initial rating claims.  The outcome of the unresolved claims could impact entitlement to these benefits. Harris v. Derwinski, 1 Vet. App. 180 (1991).  Therefore, decisions on these matters are deferred until the rating issues are decided.
The matters are REMANDED to the RO 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 his attorney.
2. Schedule the Veteran for a VA examination to determine the current severity of the service-connected low back disability.  The electronic claims file should be accessible 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 the opinion expressed must be provided.
The examiner must utilize the appropriate Disability Benefits Questionnaire.  The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain.  The examiner must test the range of motion and pain of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so.
3. After completing the above development, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder (originally claimed as a personality disorder with mild memory loss).  The examiner should review the record, including this REMAND, and note such review in the examination report.  The examination should include a review of the Veteran’s history and current complaints as well as a comprehensive evaluation and any tests deemed necessary.
The examiner is asked to accomplish the following: 
(a) Identify all of the Veteran’s acquired psychiatric disorders that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria, to include, but not limited to, personality and depressive disorders. 
The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-5 is to be applied to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014.  In the instant case, DSM-V applies to the Veteran’s claim because it was certified to the Board in July 2015.
b. For each diagnosed personality disorder, the examiner is asked to opine whether such was subject to a superimposed disease or injury during service that resulted in additional disability?  If so, please identify the additional disability. 
c. For each diagnosed acquired psychiatric disorder other than a personality disorder (bold and italics added for emphasis), the examiner must state whether such disorder clearly and unmistakably pre-existed the Veteran’s entrance into service. 
d. If there is clear and unmistakable evidence that the acquired psychiatric disorder(s)(other than a personality disorder) pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did NOT undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. 
e. If there was an increase in the severity of the Veteran’s acquired psychiatric disorder(s) (other than a personality disorder), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. 
f. For all identified acquired psychiatric disorders (other than a personality disorder) that did not clearly and unmistakably pre-exist the Veteran’s service, the examiner is asked whether it is at least as likely as not (probability of 50 percent or greater) that the disorder is  etiologically related to a period of service; was manifested to a compensable degree within a year of service discharge in July 1967 or March 1978 or was caused or permanently aggravated by a service-connected disability. 
In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology.  The examiner should also take into consideration the findings of the Veteran’s STRs noted herein; the December 2014 VA examiner’s opinion that the Veteran’s only diagnosed psychiatric disability was a personality disorder that was not incurred in or aggravated by military service; and September 2015 report, authored by Dr. H-H. G., wherein she concluded that the Veteran had suffered from unspecified depressive and personality disorders that more likely than not began during service and had continued since that time.  The rationale for any opinion offered should be provided.

 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.