Citation Nr: 1313388 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 07-05 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury, to include posttraumatic stress disorder (PTSD) and memory loss. 2. Entitlement to service connection for a bilateral shoulder disability. 3. Entitlement to service connection for nerve damage to the diaphragm. 4. Entitlement to service connection for a respiratory disability. 5. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1992 to February 1997. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In May 2012 the Board remanded the case for further development. In April 2012, the Veteran testified at a video Conference Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folder. The evidence of record indicates that the Veteran has been diagnosed with PTSD and alcohol dependence, as well as brain damage, and that he has submitted a claim for service connection for memory loss as a result of an in-service injury. The scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Accordingly, the Board has recharacterized the issue as reflected on the first page to comport with the evidence of record. 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 case was previously remanded in May 2012 to afford the Veteran VA examinations to determine the etiology of his alleged disabilities. The July 2012 VA psychiatric examination report, while noting the Veteran's history of having fallen from a second floor deck in 1974 with a loss of consciousness, indicates that he did not meet criteria for any mental disorder at the time of the examination. However, the examiner further indicates that the Veteran's claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury. The examiner provided no rationale for this statement, and reiterated that the Veteran did not currently meet criteria for any mental disorder. On remand, clarification of the opinion is needed. In December 2012, the Veteran's fiancée submitted evidence on his behalf including an August 2012 private medical examination report noting diagnosed posttraumatic stress disorder (PTSD) and chronic obstructive pulmonary disease (COPD) with listed problems including PTSD, COPD, neuropathy and brain damage. It appears that the Veteran has received private treatment for diagnosed PTSD and COPD, as well as for neurological problems and brain damage. These records are relevant to the Veteran's claims and remand to obtain them is required. The submitted evidence also included an October 2003 notice from the Social Security Administration (SSA) indicating the Veteran met the medical requirements for disability benefits. It appears from this submission that the Veteran applied for SSA benefits, and has been evaluated for such. It cannot be determined whether SSA records contain relevant information related to the Veteran's alleged memory loss, bilateral shoulder disability, nerve damage to the diaphragm, and respiratory disorder at issue. The duty to assist requires a remand to obtain the potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The July 2012 VA psychiatric examiner noted that the Veteran was hospitalized and treated for alcohol abuse at the VA Medical Center (VAMC) in Albany, New York, in 2006. VA treatment records subsequent to January 2004 are not of record. The issue of TDIU is inextricably intertwined with the Veteran's service connection claims. 38 C.F.R. §§ 3.340, 4.16. Therefore, the issue may not be resolved until the service connection issues are fully addressed. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since January 2004 from the Albany, New York, VAMC for the Veteran under both Buefford L. Frasier and Robert W. Frasier. 2. Contact SSA and request copies of any decision and associated evidence regarding any award of or application for benefits on behalf of the Veteran, under both Buefford L. Frasier and Robert W. Frasier. A written response to such request is required. 3. Contact the Veteran and ask him to either submit, or to authorize VA to obtain, private treatment records for his alleged disabilities, to include Fort Edward Internal Medicine in Fort Edward, New York. 4. Return the claims file to the July 2012 VA psychiatric examiner, if available, to include a copy of this remand. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) 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. Based on review of all the evidence of record, the examiner must initially provide diagnoses of any existing disabilities/disorders, including PTSD, residuals of a brain injury and memory loss. If the Veteran is diagnosed with PTSD, residuals of a brain injury, memory loss, or any other mental disorder or disability, the examiner is to provide an opinion as to whether it is at least as likely as not that such are the result of his 1974 in-service head injury. A clear rationale for all opinions must be provided with a discussion of the facts and medical principles involved. If the July 2012 VA examiner is unavailable, another qualified psychiatric examiner is to provide the above opinions. Should a new examination be required, one must be scheduled. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 5. Thereafter, undertake any further development necessary. Then readjudicate the appeal. If any of the issues on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ RONALD W. SCHOLZ 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).