Citation Nr: 1237477 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 06-38 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin disorder, as secondary to Agent Orange exposure. 3. Entitlement to service connection for a sleep disorder, including sleep apnea, to include as secondary to PTSD. 4. Entitlement to service connection for bilateral eye problems, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for arthritis. 6. Entitlement to service connection for dizziness. 7. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which reduced the rating for the Veteran's service-connected prostate cancer from 100 percent to 40 percent, effective June 1, 2006. In a December 2010 decision, the Board found that the reduction in the rating from 100 percent for service-connected adenocarcinoma of the prostate to 40 percent for residuals of a radical prostatectomy for adenocarcinoma of the prostate, effective June 1, 2006, was proper; and that since June 1, 2006, the criteria for a 60 percent rating, which is the maximum rating available, were met for residuals of a radical prostatectomy for adenocarcinoma of the prostate. The Board also assumed jurisdiction and remanded, rather than referred, the TDIU component of the increased rating issue to the Appeals Management Center (AMC). An August 2008 rating decision, in part, denied service connection for eye and skin problems. An October 2008 rating decision denied service connection for a sleep disorder claimed as sleep apnea. That decision also apparently reopened a claim for service connection for PTSD and denied it on the merits. A June 2010 rating decision, which was not associated with the claims folder at the time of the December 2010 Board decision, denied service connection for arthritis and dizziness and also denied entitlement to a TDIU. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In a June 2011 substantive appeal, the Veteran requested a hearing before a decision review officer at the RO. On remand, he should be afforded an appropriate hearing. Also, in the December 2010 decision, the Board found that the Veteran's April 2006 statement, wherein he indicated that he was not able to work because of his service-connected prostate disorder, raised the issue of entitlement to a TDIU as a component of the claim for an increased rating for that disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Since entitlement to a TDIU is part of the Veteran's increased rating claim, the Board assumed jurisdiction and remanded, rather than referred, the TDIU component of the increased rating issue to the AMC. The Board ordered that the Veteran be sent a VCAA notice letter for his TDIU claim, which was accomplished. Additionally, the Veteran was to be scheduled for an appropriate VA examination; however, this was not done. In its January 2012 supplemental SOC (SSOC), the AMC stated that no notice of disagreement for TDIU was received, and therefore, an appeal for TDIU was not perfected. The March 2006 rating decision pertained to the Veteran's radical prostatectomy, and no TDIU issue was rated. The Veteran submitted an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. TDIU was denied in a June 2010 rating decision. The AMC also stated that neither the notice of disagreement received in August 2010 nor the SSOC issued in June 2011 included a TDIU claim. The Veteran's representative, in a September 2012 brief, noted that the Veteran has a right, as a matter of law, to compliance with the remand orders of the Board. Stegall v. West, 11 Vet. App. 268 (1998). The representative noted that the claim must again be remanded to provide the Veteran the further development and consideration mandated in the Board's December 2010 remand which the AMC refused to provide. The U.S. Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU, as here, expressly raised by the Veteran, is an attempt to obtain an appropriate rating for disability or disabilities and is part of a claim for increased compensation. In Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his PTSD. The Court, citing the holding in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), reasoned that a request for a TDIU is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability. Thus, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim. See also Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (wherein the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) similarly held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a)). Thus, remand for further development and consideration of the Veteran's TDIU claim was proper. Therefore, the TDIU claim is again remanded to the AMC to comply with the December 2010 remand orders of the Board. See Stegall, supra. Regarding the service connection claims, the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As such, the Veteran should be afforded VA examinations, as set forth below. The Veteran has indicated that he was treated at the Jackson VA Medical Center as early as 1980. His complete VA treatment records should be obtained on remand. He also reported that he was hospitalized for dizziness at Delta Regional Medical Center in August 2001. These records should also be obtained. On remand, with respect to the PTSD claim, consideration must be given to the revisions 38 C.F.R. § 3.304(f), effective July 13, 2010, as the provisions of this amendment apply to the Veteran's claim. See 75 Fed. Reg. 39843-51 (July 13, 2010) and corrective notice at 75 Fed. Reg. 41092 (July 15, 2010); 38 C.F.R. § 3.304(f) (2011). Finally, as the case must be remanded for the foregoing reasons, an additional effort should be made to ensure that the Veteran's service treatment records are complete. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity for a hearing before a decision review officer at the RO. 2. Contact the National Personnel Records Center, and/or any other appropriate source, and request a complete copy of the Veteran's service treatment records, to include all clinical records. 3. Obtain the Veteran's treatment records from the Jackson VAMC, dated from January 1980 to August 2001 and dated from May 2010 forward. 4. Obtain the Veteran's treatment records from the Delta Regional Medical Center, dated in 2001. 5. Thereafter, schedule the Veteran for a VA examination by a psychiatrist or psychologist. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current psychiatric disorders found to be present, i.e., PTSD, etc. The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should discuss the significance, if any, of the diagnosis of a personality disorder in service. If the Veteran meets the DSM-IV criteria for PTSD, the examiner must determine whether the Veteran's PTSD can be related to the stressors reported by the Veteran. The examiner must provide an opinion as to whether the Veteran's claimed stressors are adequate to support a diagnosis of PTSD based on a fear of hostile military activity during service, and whether his symptoms are related to the claimed stressors. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. Schedule the Veteran for a VA dermatology examination. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current skin disorders found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current skin disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to Agent Orange during his service in Vietnam. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 7. Schedule the Veteran for an appropriate VA sleep disorders examination. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current sleep disorders found to be present, i.e., sleep apnea, etc. The examiner should provide an opinion as to the whether it is at least as likely as not (50 percent or greater probability) that any current sleep disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 8. Schedule the Veteran for a VA eye examination. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current eye disorders found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current eye disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 9. Schedule the Veteran for a VA orthopedic examination. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current arthritic disorders found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current arthritic disorder had its clinical onset during active service, is related to any in-service disease, event, or injury, or became manifest within one year of separation. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 10. Schedule the Veteran for a VA neurological examination. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current disorders manifested by dizziness found to be present. The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current disorder manifested by dizziness had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 11. Schedule the Veteran for an appropriate VA examination to obtain an opinion as to his TDUI claim. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should provide an opinion as to what overall effect the Veteran's service-connected residuals of radical prostatectomy for adenocarcinoma of the prostate and erectile dysfunction (as well as any other disability deemed to be service connected) have on his ability to obtain and retain employment; that is, whether it would preclude an average person from obtaining, or retaining, substantially gainful employment. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. In particular, describe what types of employment activities would be limited because of the Veteran's service-connected disability and whether any limitation on employment is likely to be permanent. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 12. Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. 13. Finally, readjudicate the claims on appeal. With respect to the PTSD claim, consideration must be given to the revisions 38 C.F.R. § 3.304(f), effective July 13, 2010, as the provisions of this amendment apply to the Veteran's claim. See 75 Fed. Reg. 39843-51 (July 13, 2010) and corrective notice at 75 Fed. Reg. 41092 (July 15, 2010); 38 C.F.R. § 3.304(f) (2011). If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant 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 Supp. 2011). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2011).