Citation Nr: 1304368 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-21 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety, and posttraumatic disorder (PTSD). 2. Entitlement to an initial rating higher than 10 percent for residuals of right hip strain 3. Entitlement to an initial rating higher than 10 percent for residuals of left hip strain 4. Entitlement to an initial rating higher than 10 percent for residuals of right ankle strain. 5. Entitlement to an increased rating for residuals of left ankle sprain, currently evaluated as 20 percent disabling. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active service from October 1986 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Amongst other issues, in May 2007, the RO denied service connection for depression. In June 2007, the Veteran claimed service connection for PTSD (for which he was denied in November 2007) and provided a detailed description of his alleged stressors. These statements can be considered as a disagreement with the prior May 2007 decision that denied service connection for the earlier diagnosed psychiatric disorders. At the very least, these statements can be considered new and material evidence, thus precluding the May 2007 rating decision from becoming final. See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Furthermore, a claim for a specific psychiatric disability encompasses a claim in general for any psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection specifically for a psychiatric disability of PTSD encompass claims for service connection for all psychiatric disabilities; an appellant generally is not competent to diagnose his mental condition, he is only competent to identify and explain the symptoms that he observes and experiences); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In light of the above, the Board has characterized the matter as reflected on the title page. In February 2010, the RO increased the rating assigned to the left ankle disability from a noncompensable rating to 20 percent, effective in May 2009. Even though the RO increased the schedular rating for the Veteran's disability during the appeal, the issue of entitlement to a higher rating remained on appeal, as the Veteran has not indicated his desire to withdraw this issue. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The RO also denied entitlement to a TDIU. In July 2010, the RO granted service connection for right hip, left hip, and right ankle strain. Each disability was assigned a 10 percent evaluation, effective in January 2010. The Veteran has disagreed with the assigned ratings. The Veteran's appeals are for a higher, i.e., compensable initial ratings for these disabilities. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award, if it is shown there have been variances in the severity of the disability). The Veteran testified at a video conference before the undersigned Veterans Law Judge in November 2012. Due to additional information provided by the Veteran, the appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Unfortunately, the record reflects that further action on the claims on appeal is warranted, even though such action will, regrettably, further delay an appellate decision in this appeal. Service connection for a chronic acquired psychiatric disorder The Veteran claims that he has psychiatric disorder related to military service to include PTSD. He alleges that his PTSD is a result of reverse discrimination he experienced in service. In reviewing his service treatment records (STRs), on the October 1986 enlistment examination report, the Veteran denied any prior nervous problem. The examination report also indicates that his psychiatric status was considered normal. An October 1987 synopsis of ADAPCP Rehabilitative Activities indicates that the Veteran was referred for rehabilitative counseling in May 1987 after charges of being intoxicated on duty were filed. He was again charged with being intoxicated on duty in April 1988. A May 1988 administrative document shows that he eventually was discharged from service prior to his end of term of service, as a result of alcohol rehabilitation failure. At March and September 1988 examinations that were conducted in conjunction with disciplinary proceedings, the Veteran reported a history of "depression or excessive worry." However, his psychiatric status was considered normal. VA outpatient records dated between October 2006 and February 2007 show that the Veteran initially sought treatment for sleep impairment, irritability, and frequent anger outbursts. He was initially diagnosed with depression. In January 2007, it was noted that he did not fulfill the criteria for PTSD but would benefit from the PTSD treatment protocol which included anger management. He was variously diagnosed with depressive disorder, schizoid and avoidant traits, anxiety disorder, rule out anti-social personality disorder, panic-disorder without agoraphobia, and rule out alcohol abuse. A VA examiner in April 2007 after reviewing the Veteran's military, social, and medical history diagnosed depression not otherwise specified (NOS), alcohol abuse, and rule out delusional disorder. This examiner noted the Veteran's long history of alcohol abuse. He concluded that it was unlikely that the current depression was related to his service. The Veteran submitted a May 2009 statement from a licensed counselor. She diagnosed alcohol abuse and PTSD. She stated, in reporting his history, that he had received VA treatment in 2007 for PTSD. She concluded that based on the Veteran's history (which included VA treatment for PTSD) his military service directly affected and contributed to his PTSD, anxiety, and depression. The record also contains a March 2010 evaluation report from a private clinical and forensic psychologist. This clinician determined that the Veteran had a clinically significant anxiety-related disorder which was likely a complex PTSD disorder. He concluded that this disorder is directly and causally related to traumatic events that occurred while on active duty. Also of record is December 2012 psychiatric consultative report. The report includes a service history based on the Veteran's report. According to this report, the Veteran now alleges that he was subjected to personal assault as well as death threats by members of service. This physician diagnosed PTSD and also related this diagnosis to his military service. Relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a Veteran's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). The M21-1MR also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.n. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). In light of the Veteran's reports, he should be advised as to the laws and regulation regarding PTSD based on personal assault. Furthermore in light of the more recent diagnoses of PTSD, the Veteran should be afforded another VA examination that reconciles his various diagnoses including PTSD. Increased ratings and TDIU The Board also notes that at a March 2007 VA examination and again in a statement received in May 2007, the Veteran reported that he applied for VA vocational rehabilitation. As the Veteran has claimed that his disabilities affect his ability to gain employment, his VA vocational rehabilitation records are potentially pertinent to this claim. However, no VA vocational rehabilitation folder has been forwarded to the Board. On remand, the RO should associate with the claims file or the Veteran's Virtual VA e-folder any records contained in the Veteran's vocational rehabilitation folder. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, his Vocational Rehabilitation and Counseling folder also needs to be obtained and associated with the claims file for consideration in this appeal. Regarding the hips and right ankle, the claims file also shows that the Veteran last underwent a VA compensation examination in May 2010. While a VA joint examination was conducted in April 2012, for the most part, it was for the left ankle. Since then he has continued to report symptoms. Further, given that nearly three years have passed since the May 2010 VA compensation examination, the evidence has become stale, at least as it pertains to the current level of disability regarding the hips and right ankle. Still further, in a September 2012 rating action, subsequent to the most recent VA examination, service connection was granted for dextroscoliosis of the thoraco lumbar spine. Consequently, the Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of disability as well as the effect his service connected disabilities has on his ability to obtain and sustain gainful employment. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA Vocational Rehabilitation and Counseling folder and associate it with the claims file for consideration. He also must be appropriately notified in the event it is not obtained. 38 C.F.R § 3.159(e)(1). 2. Give him an opportunity to identify any additional healthcare provider who has treated him for his service connected disabilities and psychiatric disorders. After securing any necessary authorization from him, obtain all identified treatment records not already in the claims file. He also must be appropriately notified if unable to obtain any identified records. 38 C.F.R. § 3.159(e). 3. Upon receipt of all additional records, contact the Veteran and request that he provide a more specific and detailed statement describing his alleged stressors, including the full names of participants, units of assignment, and other units involved at the time of the stressor. He should be informed that specific dates, locations, circumstances, and names of those involved in the reported incidents would prove helpful in attempting to verify his stressors. 4. If the Veteran provides further details concerning his stressors, take appropriate action to confirm his claimed stressor(s). 5. Following completion of the development set forth above, schedule the Veteran for a VA psychiatric examination by a psychologist or a psychiatrist. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies are to be conducted. After conducting an examination of the Veteran and performing any clinically indicated diagnostic testing, the examiner should provide an opinion as to the diagnosis of any acquired psychiatric disorders found to be present, i.e., PTSD, depression, anxiety disorder, etc. 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 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 acknowledge the Veteran's in-service treatment for alcohol abuse. If the Veteran meets the DSM-IV criteria for PTSD, the examiner must determine whether the Veteran' PTSD can be related to the stressor(s) reported by the Veteran. 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. The Veteran should also be afforded a VA general medical examination to determine the nature and severity of his service connected orthopedic disabilities. The examiner should report the range of motion of the ankles and hips, in degrees. The examiner should specifically note and discuss in detail whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups, including when the Veteran is performing daily activities. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that the Veteran's service-connected disabilities preclude him from obtaining and maintaining employment that is substantially gainful versus just marginal when considering his level of education, prior work experience, and special training, etc., but not his age or impairment that is attributable to disabilities that are not service connected. 7. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran 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). These claims 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). _________________________________________________ K. Parakkal 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).