Citation Nr: 1237479 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 06-31 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD), to include as secondary to service-connected disability. 2. Entitlement to an initial evaluation in excess of 40 percent disabling for conversion hemiparesis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from April 1966 to April 1968 and from February 2003 to November 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2005 (conversion hemiparesis) and May 2006 (psychiatric disability) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In September 2012 the Veteran's representative raised the issues of entitlement to service connection for residuals of a torn rotator cuff, to include as secondary to service-connected disability, entitlement to service connection for hypertension, and whether new and material evidence has been raised to reopen a claim of entitlement to service connection for bilateral hearing loss. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In June 2010, the Board remanded the Veteran's claim for service connection for psychiatric disability, in part, for the Veteran to be afforded a VA medical examination. The Board ordered that the examiner provide an opinion as to whether it is at least as likely as not that any acquired psychiatric disability, to include PTSD, is related to service or service-connected disability. Pursuant to the Board's remand, in December 2010 the Veteran was afforded a VA psychiatric examination. After examination the Veteran was diagnosed with depressive disorder, not otherwise specified (NOS). The examiner rendered the opinion that the Veteran reported that at one point he experienced some significant PTSD symptoms such as recurrent nightmares and significant sleep disturbance. However, the examiner found that the Veteran did not have the breadth of symptoms or severity of symptoms to warrant a stress disorder diagnosis. In addition, the examiner noted that the Veteran had some significant depressive symptoms related to his legal issues which were noted to be in regard to a legal case involving alleged inappropriate conduct with his mother-in-law. The examiner stated that these are not service related. The Board notes that the examiner in December 2010 did not render an opinion regarding whether the Veteran's diagnosed depressive disorder was etiologically related to, or chronically aggravated by, the Veteran's service-connected disabilities. Subsequently, in a December 5, 2011 addendum to the examination report, the examiner noted that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that Veteran did not meet the criteria for the condition. In addition, the examiner rendered the opinion that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. Again, the rationale provided was that the Veteran did not meet the criteria for the condition. Lastly the examiner noted that the Veteran was most recently diagnosed with depressive disorder NOS and that he did not meet the criteria for a diagnosis of PTSD. The Board notes that this addendum does not provide an opinion regarding the etiology of the Veteran's depressive disorder but rather solely renders an opinion regarding the claimed condition of PTSD as indicated by the rationale provided by the examiner. In another addendum dated December 20, 2011 it is noted that: [The Veteran] does not meet criteria for a post traumatic stress disorder at this time. He does meet criteria for Depressive Disorder NOS, however, this disorder was not caused by military service and is not related to any service connected disabilities. C-file was reviewed by this examiner. To the extent that this addendum provides an opinion regarding the Veteran's diagnosed depressive disorder, the examiner does not render an opinion regarding whether the Veteran's disorder may have been aggravated by any service-connected disability or provide adequate rationale. A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only ... applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the examination and addenda do not adequately address whether the Veteran's diagnosed depressive disorder is related to the Veteran's active service or the Veteran's service-connected disability, the Board finds that the Veteran must be afforded another VA medical examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). In a June 2010 remand, the Board noted that in May 2006 the RO made a formal finding of a lack of information required to corroborate stressors associated with the Veteran's claim for serve connection for PTSD. The Board noted that the May 2006 RO's finding was based, in large part, on a reply from the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly USASCURR) essentially indicating that the Veteran's claimed stressors (in particular, a stressor related to witnessing the death of civilians) lack sufficient specificity for verification. The Board continued to state that in a statement received in April 2007, and as essentially requested by the RO, the Veteran provided additional information concerning his stressors for his PTSD claim. Upon review of the Veteran's April 2007 statement, the Board found that an attempt to verify the asserted stressor related to being mortared during his service in Vietnam should be undertaken. Review of the claims file reveals that in September 2010 a PTSD Stressor Review Checklist was completed; however, it does not appear that any request was made to the JSRRC in an attempt to confirm the indicated stressors. As such, the Board has no discretion and must remand for this development to be accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2005, the Veteran expressed disagreement with the initial 10 percent evaluation assigned following the grant of entitlement to service connection for conversion hemiparesis in a RO rating decision dated in April 2005. The Board notes that subsequent to this disagreement, in a September 2005 rating decision, the RO granted an initial evaluation of 40 percent for conversion hemiparesis, effective the date of entitlement to service connection. The RO indicated that this grant represented a total grant of the benefits sought as a 40 percent evaluation represented the maximum schedular evaluation available. However, the Board notes that a higher evaluation may be awarded on an extraschedular basis and, therefore, this grant does not represent a total grant of the benefit sought. To date, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). The Board also notes that the United States Court of Appeals for Veterans Claims has held: that a request for [total disability rating for compensation purposes based on individual unemployability (TDIU)], whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). As the Board is remanding the issue of entitlement to an initial evaluation in excess of 40 percent disabling for conversion hemiparesis for the issuance of a SOC so that the Veteran may be afforded the opportunity to perfect an appeal, consideration of whether a TDIU is warranted, as another avenue for a higher evaluation, is currently premature. Since the claims file is being returned it should be updated to include VA treatment records compiled since January 2012. See 38 C.F.R. § 3.159(c)(2) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO must issue the Veteran an SOC with respect to his claim seeking entitlement to an initial evaluation in excess of 40 percent disabling for conversion hemiparesis, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. The RO should allow the appellant the requisite period of time for a response. 2. Attempt to obtain VA medical records pertaining to the Veteran that are dated since January 2012. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 3. Attempt to obtain the relevant unit records from the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly USASCURR) pertaining to the Veteran's service in Vietnam to corroborate the Veteran's claimed stressor of being subjected to rocket and mortar fire. 4. Thereafter, schedule the Veteran for a VA psychiatric examination. Following examination of the Veteran and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that any acquired psychiatric disability, to include depressive disorder and PTSD, is related to service. If not, the examiner should opine as to whether it is at least as likely as not that any acquired psychiatric disability, to include depressive disorder and PTSD, was either (a) caused by or (b) aggravated by a service-connected disability. If PTSD is diagnosed, the examiner must identify the stressors that serve as the basis for the diagnosis. The examiner should conduct all necessary testing and evaluation and indicate whether or not he or she has reviewed the claims folder. 5. Thereafter, readjudicate the issue of entitlement to service connection for an acquired psychiatric disability, to include depressive disorder and posttraumatic stress disorder (PTSD), to include as secondary to service-connected disability. If the benefit sought is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ U. R. POWELL 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) (2012).