Citation Nr: 1306706 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-42 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, schizoaffective disorder, bipolar disorder, and posttraumatic stress disorder (PTSD), to include as secondary to service-connected migraines. 2. Entitlement to service connection for depression, as secondary to PTSD. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant (Veteran) represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied entitlement to service connection for a psychiatric disorder, denied a compensable initial rating for headaches, and denied the assignment of a TDIU. The Veteran filed his original claim of service connection for a psychiatric disorder in October 2007. Throughout the appeal period, in multiple statements of record, he has variously asserted that his service has caused several psychiatric disorders, to include PTSD, depression, anxiety, and bipolar disorder. The Veteran has also asserted that a psychiatric disorder is secondary to service-connected migraine headaches, or alternatively, that his depression is secondary to PTSD. The record reflects various diagnoses for this Veteran, to include schizoaffective disorder, PTSD, depression, anxiety, bipolar disorder, and substance abuse. The Court of Appeals for Veterans Claims has held that a service connection claim that describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, it is more appropriate to consider the Veteran's symptoms as a single claim, rather than several separate claims, and it is characterized accordingly. Cf. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). The Board finds that the current appeal of service connection for a psychiatric disorder stems from the original claim filed in October 2007, and initially denied by the RO in November 2008. Although the Veteran did not file a notice of disagreement within one year of the November 2008 rating decision, he did submit into the record new and material evidence in the form of medical opinions from private physicians. The new and material evidence was subsequently considered by the RO in the March 2010 rating decision that was timely appealed by the Veteran. As such, the issue on appeal is an original service connection issue, rather than a claim to reopen service connection issue. 38 C.F.R. §§ 3.156, 20.202 (2012). Following the Veteran's October 2010 substantive appeal of the issues denied in March 2010, the RO, in a February 2012 rating decision, granted a higher initial rating of 30 percent for headaches, effective December 6, 2011. In a statement received in February 2012, the Veteran indicated that the higher rating "satisfies my appeal" and thereby withdrew the issue from appeal. As such, the issue regarding whether a higher initial rating is warranted for headaches is not before the Board. The Board notes that it has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. No relevant evidence has been added to the claims file by the RO since the supplemental statement of the case (SSOC) dated in May 2012. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds remand necessary so that additional development and medical inquiry may be conducted into the Veteran's claim of service connection for an acquired psychiatric disorder. In the Veteran's many statements of record, he offers several theories as to how he believes he developed a psychiatric disorder during service. In certain statements he asserts that combat in Vietnam caused his disorder. In another statement he indicates incurrence as the result of witnessing a friend's drowning while in Hong Kong. In other statements he indicates that he developed a psychiatric disorder as the result of fear he experienced while trapped in an amphibious vehicle during training. And he also indicates, along with certain private medical examiners, that a psychiatric disorder may in some way be secondary to his service-connected migraine headaches. Based on the RO's extensive development in this matter, the record does not support the Veteran's claim to have experienced combat, to have served in Vietnam, or to have served with a service member who drowned while returning from liberty in Hong Kong. Instead, the record contains evidence that questions the veracity of these claimed stressors, and the Veteran's credibility in general. Nevertheless, the Board finds that the record is not sufficiently developed to decide his claim. That is because the record contains evidence of a current psychiatric disability, contains evidence of psychiatric symptomatology during service, but contains no VA compensation examination report and opinion commenting on the Veteran's claim. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). The evidence of a current disability is found in multiple private and VA treatment records reflecting the various psychiatric illnesses noted above. The evidence of an in-service disorder is found in lay statements of record from the Veteran who attests to experiencing anxiety, depression, and panic attacks during service. Despite the evidence of record that challenges the Veteran's credibility, he is nevertheless competent to offer into evidence observable symptoms he may have experienced during service. Inasmuch as he has stated in the record that he experienced adverse psychiatric symptoms during service to include panic attacks, and because the record is clear that the Veteran has current psychiatric disorders, a VA compensation medical examination into his claim is warranted. Moreover, medical inquiry and commentary is warranted on the secondary service connection aspect of his claim as well. With regard to the claim for a TDIU, the Board finds this issue inextricably intertwined with the issue remanded and should not be decided at this time. As such, the Board will withhold its decision on the TDIU claim until the development regarding the claim of service connection for a psychiatric disorder has been completed, and the claims have been readjudicated by the RO/AMC. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001) (separate claims are adjudicated together when they are "intimately connected"); Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following: 1. Notify the Veteran concerning how he can substantiate a claim to service connection on a secondary basis. 38 C.F.R. § 3.310. 2. Attempt to obtain and associate with the claims folder any outstanding VA treatment records. If no such records exist, the claims file should be documented accordingly. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed psychiatric disorder. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to provide opinions as to the following: a. The examiner should diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM- IV). b. Specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM- IV. c. If a PTSD diagnosis is warranted, indicate the specific claimed in-service stressor or stressors upon which that diagnosis is based. d. Discuss whether it is at least as likely as not that any currently diagnosed psychiatric disorder was caused or aggravated by any in-service disease, event, or injury. e. The examiner should also provide an opinion as to whether it is at least as likely as not that a diagnosed psychiatric disorder was caused by the Veteran's service-connected migraine headaches, or has been aggravated (increased in severity beyond the natural course of the disability) by the migraine headaches. Please explain the reasons behind any opinions expressed and conclusions reached. The examiner is further reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 5. After all the above development has been completed, readjudicate the claims on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran should be provided with a SSOC as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).