Citation Nr: 1311287 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-35 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. 2. Entitlement to service connection for hypertension, to include as secondary to a psychiatric disorder. 3. Entitlement to service connection for stroke residuals, to include as secondary to an undiagnosed illness, or as secondary to a psychiatric disorder or hypertension. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to a psychiatric disorder, hypertension, or stroke residuals. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to March 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and October 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In his September 2009 VA Form 9 the Veteran requested a Board hearing, but in a December 2010 statement he withdrew his request for a Board hearing and instead requested a hearing before a Decision Review Officer (DRO). In February 2012 the Veteran submitted a statement cancelling his DRO hearing and requesting that the Board decide his claim based on the evidence of record. Accordingly, the appellant's request for a hearing is considered to be withdrawn. 38 C.F.R. § 20.704(e) (2012). The Veteran originally filed a claim seeking entitlement to service connection for PTSD. The medical evidence indicates treatment and diagnoses for PTSD as well as other psychiatric disorders, such as anxiety and depression. The U.S. Court of Appeals for Veterans Claims (Court) held in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. Accordingly, the record reasonably raises the issue of whether there are other psychiatric disorders that may be related to the Veteran's military service and the Veteran's psychiatric disorder claim has been appropriately recharacterized above. The Veteran originally claimed that his stroke residuals were secondary to an undiagnosed illness. During the appeal, he also raised the issue that his stroke was secondary to his hypertension or psychiatric disorder. Although the RO has treated this as a new claim, the Court recognized that a claim based on a new theory of entitlement is not a new claim. Ashford v. Brown, 10 Vet. App. 120 (1997). Accordingly the Board will consider entitlement to service connection as secondary to hypertension or a psychiatric disorder as well. 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 The Veteran contends that he has a psychiatric disorder, to include PTSD, anxiety, or depression, as a result of his active duty service, to include time spent in Saudi Arabia. He further contends that he has other disabilities which occurred secondary to his psychiatric disorder, to include hypertension, stroke residuals, and erectile dysfunction. He has also alleged that his stroke residuals are the result of hypertension and that his erectile dysfunction is secondary to his stroke. The Veteran was afforded a psychiatric examination in September 2011 where the examiner determined the Veteran had anxiety disorder NOS with depressive symptoms. The examiner also reported that the Veteran had not been diagnosed with PTSD. As noted in the Veteran's representative's March 2013 Brief, the examiner did not provide an opinion as to whether the Veteran's psychiatric disorder was at least as likely as not related to service. The Court has held that once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The September 2011 VA examination is inadequate in two respects. The examiner did not provide an opinion as to whether the Veteran's diagnosed psychiatric disorder was related to service. The examiner also stated that the Veteran had not been diagnosed with PTSD, although there are multiple VA and private treatment records showing diagnoses and treatment for PTSD. As for the Veteran's hypertension, stroke residuals, and erectile dysfunction claims, the Court has held that all issues 'inextricably intertwined' with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As these claims are impacted by the outcome of the Veteran's psychiatric claim, these claims are considered to be inextricably intertwined. Consequently, the claims of entitlement to service connection for hypertension, stroke residuals, and erectile dysfunction must be remanded in accordance with Harris. Finally, the Veteran submitted a release in September 2009 for the RO to obtain outstanding treatment records from Dr. V.S.F. There is no evidence the RO attempted to locate these treatment records. Accordingly, the case is REMANDED to the Agency of Original Jurisdiction (AOJ) for the following action: 1. Ask the Veteran to identify all records of VA and non-VA health care providers who have treated him for his claimed disabilities. a) After obtaining any appropriate authorizations for release of medical information, to include for Dr. V.S.F, the AOJ must seek to obtain any potentially relevant records that have not been previously received from each health care provider the Veteran identifies. b) The Veteran should be advised that the only treatment records obtained from Dr. V.S.F. were two pages, a July 2008 statement, and a July 2001 discharge summary. If there are additional outstanding private treatment records, he may alternatively obtain them on his own and submit them to the AOJ. c) The AOJ must associate with the claims file all outstanding medical treatment records from any VA treatment facility. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder. a) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. b) The examiner(s) must conduct any appropriate interviews and clinical testing. c) The examiner is asked to identify the psychiatric disabilities the Veteran has, to include PTSD, and state whether any diagnosis is at least as likely as not related to service. d) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. e) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. 3. If it is determined that the Veteran has a psychiatric disorder that is related to service, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his hypertension, stroke residuals, and erectile dysfunction. a) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. b) The examiner(s) must conduct any appropriate interviews and clinical testing. c) The examiner should then state whether the Veteran's hypertension, stroke, or erectile dysfunction were caused or aggravated by the Veteran's psychiatric disorder. d) In the alternative, the examiner should state whether they are at least as likely as not related to service. e) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. f) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. 4. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claims. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ KELLI A. KORDICH Acting 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).