Citation Nr: 1310187 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-28 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and alcoholism. 2. Entitlement to service connection for a right shoulder disability, to include as secondary to service connected disabilities. 3. Entitlement to service connection for a left knee disability, to include as secondary to service connected disabilities. 4. Entitlement to service connection for a right foot disability, to include as secondary to service connected disabilities. 5. Entitlement to an initial disability rating in excess of 10 percent for the period prior to January 10, 2011, and a disability rating in excess of 20 percent for the period beginning January 10, 2011, for a left shoulder disability. 6. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability. 7. Entitlement to an effective date earlier than October 8, 2003, for the grant of service connection for a left shoulder disability. 8. Entitlement to an effective date earlier than October 8, 2003, for the grant of service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from December 1979 to December 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia and from a February 2012 rating decision by the Appeals Management Center (AMC), in Washington, DC. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. This case was previously before the Board, most recently in November 2012, at which time the case was sent to the VA Medical Center for review and a medical opinion. The case has now been returned to the Board for further appellate action. The issue of entitlement to a total disability rating based on individual unemployability due to service connection disabilities (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for right shoulder, left knee, and right foot disabilities; of entitlement to increased disabilities ratings for left shoulder and right knee disabilities; and of entitlement to earlier effective dates for the grant of service connection for left shoulder and right knee disabilities are addressed in the REMAND following the ORDER section of this decision. FINDING OF FACT An anxiety disorder, not otherwise specified (NOS), is etiologically related to the Veteran's active service. CONCLUSION OF LAW An anxiety disorder, NOS, was incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim of entitlement to service connection for anxiety disorder NOS. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has PTSD as a result of his experiences while in active military service. Specifically, the Veteran has reported that while in active service he witnessed the death of a fellow serviceman aboard the USS Ranger due to heat stroke/cardiac arrest after being forced to do exercises in the heat. The Veteran has also reported that he witnessed an explosion in the boiler room that killed one of his friends and other sailors and that he personally saw their "charred bodies" following the explosion. Finally, the Veteran has reported that he was physically and sexually assaulted by an officer who he then had to interact with on a daily basis while at work. The Veteran's service treatment records (STRs) are negative for any treatment for or a diagnosis of a psychiatric disability while the Veteran was in active service. However, the Veteran's service personnel records (SPRs) include a memorandum on the subject of a misconduct discharge that discussed the possibility of arranging the Veteran's post-service enrollment in a rehabilitation program due to alcohol and/or drug dependency prior to discharge. A review of the post-service medical evidence of record shows that the Veteran has been diagnosed with various psychiatric disabilities since his separation from active service including posttraumatic stress disorder (PTSD), major depressive disorder, dysthymia, a generalized anxiety disorder, mood disorder, alcohol dependence, cocaine dependence, bipolar disorder, and anxiety disorder. A January 2011 VA examination report shows a diagnosis of depressive disorder NOS and alcohol abuse. The VA examiner at that time opined that the Veteran did not endorse symptoms meeting the criteria for a diagnosis of PTSD and his symptoms were neither due to or caused by his active service. In a December 2011 addendum opinion, the VA examiner further opined that the Veteran's depression and alcohol abuse were not due to his active service. In a January 2012 addendum, the examiner further noted that the Veteran was not diagnosed and treated for depression and alcohol abuse until 2008, which was over 20 years following his separation from active service. Based on this fact, the examiner reiterated his opinion that the Veteran's depression and alcohol abuse were not related to his active service. In February 2013, the Veteran's claims file was sent to the VA Medical Center for review and an opinion. Based on a review of the record, the VA examiner found that the Veteran's symptoms of record supported a diagnosis of anxiety disorder NOS. The examiner acknowledged that the Veteran had been diagnosed with PTSD by many of his mental health treatment providers over the years, but noted that there was no indication from the record that the Veteran had ever exhibited the avoidance and numbing symptoms required for a diagnosis of PTSD in accordance with DSM-IV criteria. Therefore, the examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. However, the examiner noted that the Veteran's symptoms that were documented did appear to be the result of traumatic experiences while in active service. The examiner also acknowledged that the Veteran had been diagnosed with major depression. However, the examiner noted that the Veteran's major depression symptoms of record did not appear to meet all the criteria for a diagnosis of such in accordance with the DSM-IV. In this regard, the examiner noted that the Veteran did not appear to have symptoms of mixed episodes, symptoms causing clinically significant distress, or symptoms due to bereavement. As noted above, based on the review of the record, the examiner found that the Veteran's symptoms would be correctly classified as anxiety disorder NOS. The examiner opined that it was at least as likely as not that this disability was related to the Veteran's experiences in active service. In this regard, the examiner noted that the Veteran's re-experiencing symptoms of record were related to the in-service traumatic events discussed above. In sum, the Veteran was noted to have alcohol and/or drug dependency problems prior to his separation from active service. The Veteran has received mental health treatment following his separation from active service. The February 2013 VA examiner found that the Veteran's various symptoms of record were most accurately classified as anxiety disorder NOS and opined that this disability was related to the Veteran's active service. There is no competent medical opinion of record to the contrary. The Board notes that the Veteran originally filed his claim of entitlement to service connection for PTSD. However, as noted above, the February 2013 VA examiner completed a very thorough review of the Veteran's claims file, to include his various mental health treatment records, and found that the Veteran did not have the symptoms to support a diagnosis of PTSD in accordance with DSM IV criteria. Rather, the examiner found that the Veteran's symptoms supported a diagnosis of anxiety disorder, NOS, and, as discussed, service connection for such has been considered. Similarly, the examiner did not find that the Veteran met the criteria for a diagnosis of depression and alcohol abuse is not subject to direct service connection (the law prohibits a grant of direct service connection for alcohol abuse on the basis of incurrence or aggravation in the line of duty during service) Public Law No. 101-508, Section 8052, 104 Stat. 1388 (1990); VAOPGCPREC 2-98 (February 10, 1998)), and has otherwise not been related as secondary to service-connected disability (Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Accordingly, the Board finds that the evidence supports entitlement to service connection for only the acquired psychiatric disorder of anxiety disorder, NOS. ORDER Entitlement to service connection for anxiety disorder, NOS, is granted. REMAND The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided. At the outset, the Board notes that the Veteran submitted a statement in May 2012 that the Board finds to be a timely notice of disagreement with the disability ratings and effective dates assigned for the Veteran's left shoulder and right knee disabilities in the February 2012 rating decision. A review of the record shows that the Veteran was not furnished a statement of the case in response to his notice of disagreement. Because the notice of disagreement placed that issue in appellate status and the matter must be remanded for the originating agency to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that the Veteran originally filed a claim of entitlement to service connection for rheumatoid arthritis in the shoulders, knees, and feet. In September 2010, the Board remanded the issue of entitlement to service connection for rheumatoid arthritis, to include the shoulders, knees, and feet for a VA examination and opinions. Based on the outcome of the directed development, the Veteran was granted entitlement to service connection for left shoulder, right knee, and left foot disabilities. However, the Veteran was never provided a Supplemental Statement of the Case with respect to the remaining issues of entitlement to service connection for right shoulder, left knee, and right foot disabilities. Additionally, the Board notes that service connection may be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Since the Veteran has been awarded entitlement to service connection for left shoulder, right knee, and left foot disabilities, the theory of secondary service connection for the opposing extremities is raised. A review of the record shows that this theory of entitlement has not been considered. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present right shoulder, left knee, and right foot disabilities; to include whether they were caused or chronically worsened by any of his service-connected disabilities. Additionally, current treatment records should be obtained before a decision is rendered with regard to these issues. Finally, the Board notes that further development is in order to comply with the notice requirements of 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED to the RO or the AMC for the following actions: 1. The RO or the AMC should provide the Veteran and his representative with a Statement of the Case on the issues of entitlement increased disability ratings for left shoulder and right knee disabilities and for the issues of entitlement to an earlier effective date for the grant of service connection for left shoulder and right knee disabilities. It should also inform the Veteran of the requirements to perfect an appeal with respect to these issues. If the Veteran perfects an appeal, the RO or the AMC should ensure that all indicated development is completed before the case is returned to the Board. 2. Provide the Veteran and his representative with notice of how to substantiate a claim for secondary service connection in compliance with 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b), to include notice with respect to 38 C.F.R. § 3.310(a) (2006) and Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 3. Undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran should be obtained and associated with the claims files. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 4. Then, the Veteran should be afforded a VA examination(s) by a physician(s) with sufficient expertise to determine the nature and etiology of any currently present right shoulder, left knee, and right foot disabilities. The Veteran's claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and reviewed by the examiner. Any indicated studies should also be performed. Based on the examination results and the review of the record, the examiner(s) should provide an opinion with respect to any currently present right shoulder, left knee, and right foot disabilities as to whether there is a 50 percent or better probability that the disability is etiologically related to the Veteran's active service. The examiner(s) should also provide an opinion with respect to any currently present right shoulder, left knee, and right foot disabilities as to whether there is a 50 percent of better probability that the disability was caused or chronically worsened by any of the Veteran's service-connected disabilities. The supporting rationale for all opinions expressed must be provided. 5. The RO or the AMC should ensure that all VA examination reports and medical opinions provided comport with this remand and conduct any other development it determines to be warranted. 6. Then, the RO or the AMC should readjudicate the Veteran's remaining claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case, provided an appropriate opportunity to respond, and the case should thereafter be returned to the Board for further appellate action. 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs