Citation Nr: 1301860 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 02-09 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), paranoid schizophrenia, major depressive disorder, and anxiety disorder. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected chronic lumbar strain. 3. Entitlement to an initial compensable rating for headaches. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1982. 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. In January 2003, the RO denied entitlement to service connection for an acquired psychiatric disorder. In March 2003, the Veteran filed a Notice of Disagreement. The RO furnished the Veteran a Statement of the Case in December 2003, and the Veteran filed a Substantive Appeal (VA Form 9) later in December 2003. On July 1, 2008, the RO denied entitlement to service connection for erectile dysfunction. The RO has treated the claim for service connection for erectile dysfunction as a claim to reopen. However, the Veteran submitted additional relevant evidence within one year of the July 1, 2008 rating decision. See 38 C.F.R. § 3.156(b) (2012) (directing that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). A July 14, 2008 letter requested service connection for erectile dysfunction and provided additional relevant evidence. A July 30, 2008 decision again denied service connection for erectile dysfunction. The Veteran filed a Notice of Disagreement in August 2008. The RO furnished the Veteran a Statement of the Case in January 2010, and the Veteran filed a Substantive Appeal (VA Form 9) in February 2010. Accordingly, the claim for service connection for erectile dysfunction will be considered on the merits. Id. The Board additionally notes that the January 2010 Statement of the Case was also furnished for the issues of service connection for bowel and bladder incontinence and increased rating for chronic lumbar strain and chronic obstructive pulmonary disease. However, the Veteran's February 2010 VA Form 9 specified that he intended to only appeal the issue of entitlement to service connection for erectile dysfunction. Thus, he perfected a timely substantive appeal only for this issue. In June 2009, pursuant to a June 2009 Board decision, the RO granted service connection for headaches and assigned a 0 percent rating, effective August 1, 2001. In February 2010, the Veteran filed a Notice of Disagreement with the assigned disability rating. The RO furnished the Veteran a Statement of the Case in December 2011, and the Veteran filed a Substantive Appeal (VA Form 9) in January 2012. The Veteran testified before a Decision Review Officer in March 2004 and May 2006. Additionally, in December 2007, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of these hearings are associated with the claims file. The Board remanded the claim for service connection for an acquired psychiatric disorder in June 2009. Subsequently, in a March 2011 decision, the Board denied the claim. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2011 Joint Motion for Remand, a November 2011 Order of the Court vacated the decision denying the claim and remanded the claim for readjudication in accordance with the Joint Motion for Remand. In April 2012, the Board remanded the claim for service connection for an acquired psychiatric disorder pursuant to the Order of the Court. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain documents, including VA medical records dated from September 2010 to April 2012, are potentially relevant to the issues on appeal. Thus, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, after a review of the record, further development is required prior to adjudicating the Veteran's claims. Regarding the Veteran's claim for service connection for an acquired psychiatric disorder, pursuant to the Board's April 2012 remand, the Veteran underwent a VA psychiatric examination in May 2012, in part, to determine whether he had any current psychiatric disorder (other than PTSD), to include schizophrenia, that was related to his period of active service. The Board specifically mentioned schizophrenia in its remand instructions, as an October 2006 VA medical report indicates that the Veteran had been diagnosed with paranoid schizophrenia. The Board notes that an October 2006 VA medical report also reveals that the Veteran had been diagnosed with depression. On VA examination in May 2012, the examiner found that the Veteran's psychiatric symptoms did not meet the DSM-IV criteria for a diagnosis of PTSD. She instead determined that the Veteran's symptoms were best accounted for by a current diagnosis of anxiety disorder, not otherwise specified. The examiner stated that with respect to the anxiety disorder, it would require her to engage in speculation to determine if the Veteran's anxiety symptoms were due to service. She based her finding on the number of years that had elapsed between military service and the report of the anxiety symptoms, a clinical interview with the Veteran, a review of the records, the chronology of the onset of symptoms, the DSM-IV criteria, and her training and experience. Although the May 2012 examiner discussed the Veteran's current diagnosis, finding that his symptoms did not meet the DSM-IV criteria for PTSD but instead fit a current diagnosis of anxiety disorder, she did not actually discuss the past diagnoses of disorders in the record. The Board notes that while medical evidence of record reflects that the Veteran's symptoms appear to fit with a diagnosis of anxiety disorder, the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court has held that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, although the Veteran only has a current diagnosis of anxiety disorder, he has also clearly been previously diagnosed with paranoid schizophrenia and depression. The May 2012 examiner provided an opinion regarding the Veteran's anxiety disorder, but failed to provide an opinion for the etiology of the Veteran's previous diagnoses of paranoid schizophrenia and depression. Given the above, the claims file should be returned to the May 2012 examiner, if available, in order to obtain opinions regarding any relationship between the Veteran's paranoid schizophrenia and depression and his military service. With respect to the claim for service connection for erectile dysfunction, the Veteran contends that his erectile dysfunction is due to his service-connected chronic lumbar strain. At an April 2008 VA genitourinary examination, the Veteran was diagnosed, in pertinent part, with erectile dysfunction and degenerative disc disease of the lumbar spine without evidence of radiculopathy. The examiner noted that the Veteran was service-connected for chronic lumbar strain but indicated that there was no evidence of lumbar radiculopathy. The examiner opined that chronic lumbar strain per se was less likely as not to cause erectile dysfunction. The examiner explained that if the Veteran had been service-connected for spinal cord compression or radiculopathy, it could be argued that the Veteran's erectile dysfunction was the result of these disabilities. Service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). At present, there are no medical opinions of record addressing whether the Veteran's erectile dysfunction has been aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected chronic lumbar strain. Therefore, in light of the above, the Veteran should now be afforded a new VA genitourinary examination with medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Veteran was last afforded a VA examination for his headaches in September 2008, over 4 years ago. Because there may have been changes in the Veteran's condition, the Board finds that a new neurological examination is needed to fully and fairly evaluate the Veteran's claim for increased initial rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the May 2012 VA psychiatric examination, if available. The examiner should once again review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current acquired psychiatric disorder (other than PTSD), to specifically include paranoid schizophrenia, major depressive disorder, and anxiety disorder, arose during service or is otherwise related to any incident of service. Even if the Veteran's previously diagnosed paranoid schizophrenia is determined not to have manifested during service, the examiner should also indicate whether the Veteran's previously diagnosed paranoid schizophrenia manifested within one year of his discharge from service in January 1982. The examiner should explain the medical basis for the conclusions reached. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinions with rationale should be rendered by another qualified examiner. 2. Schedule the Veteran for a VA genitourinary examination to obtain a medical opinion as to whether his current erectile dysfunction is possibly related to his service-connected chronic lumbar strain. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) any current erectile dysfunction was caused by or related to the Veteran's service-connected chronic lumbar strain. If not caused by or related to the Veteran's chronic lumbar strain, the examiner should provide an opinion as to whether the Veteran's erectile dysfunction is aggravated (permanent worsening of the underlying disability beyond natural progress) by the chronic lumbar strain. If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible. The examiner should explain the medical basis for the conclusions reached. 3. Schedule the Veteran for a neurological examination to determine the current severity of his headaches. The examiner must review the claims folder in conjunction with the examination. All indicated tests should be performed and the results reported. The examiner should describe all symptomatology related to the Veteran's service-connected headaches. The examiner should also describe the severity, duration, and frequency of the headaches. A rationale for any opinion expressed should be provided. 4. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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. 2012). _________________________________________________ DEBORAH W. SINGLETON 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).