Citation Nr: 1314504 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 03-27 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for PTSD or major depressive disorder, to include compensation under the provisions of 38 U.S.C.A. § 1151 with respect to medical treatment at the St. Louis VA Medical Center in December 2002. 2. Entitlement to service connection for a dental or jaw disorder (claimed as jaw pain, extraction of wisdom teeth, and adverse reaction to drugs). 3. Entitlement to service connection for a thoracolumbar spine disorder (claimed as residuals of whiplash, scoliosis, spondylosis, and DDD of the thoracic and lumbar spines). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty service from July 1966 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2003 and June 2004 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims of service connection and her claim for compensation under 38 U.S.C.A. § 1151 for PTSD, respectively. The Veteran timely appealed those issues to the Board. Initially, the Board notes that the Veteran's claims of service connection were denied in May 1998 and May 1999 rating decisions. The Veteran disagreed with those decisions in April 2000 and June 2000 notices of disagreement. VA issued a statement of the case as to the issues on appeal in May 2001. No timely substantive appeal, VA Form 9, was filed. However, notwithstanding the lack of a timely receipt of a substantive appeal, VA readjudicated all of the service connection issues on appeal in the February 2003 appeal following the advent of the Veterans Claims Assistance Act of 2000 in the February 2003 rating decision. The Veteran timely appealed all of the readjudicated issues at that time. Following that appeal, the Veteran additionally filed a claim for compensation for PTSD and a back condition under 38 U.S.C.A. § 1151 in December 2003. Such claims were denied in the June 2004 rating decision, and the Veteran also timely appealed those issues. This case was previously before the Board in May 2006, at which time the claim for compensation for a back disorder under 38 U.S.C.A. § 1151 was denied; that determination final and such issue is no longer in appellate status. The remaining claims for service connection and for compensation for PTSD under 38 U.S.C.A. § 1151 were remanded in May 2006 for further development. After the requested development was completed, the case was returned to the Board in July 2011. In a July 2011 Board decision, the Veteran's claim for compensation for PTSD or a major depressive disorder under the provisions of 38 U.S.C.A. § 1151 was denied. The claims for service connection for a dental or jaw disorder and a thoracolumbar spine disorder were remanded for additional development. Also remanded were claims of service connection for a cervical spine disability, a disorder of the bilateral upper extremities, and fibromyalgia, which were all granted in a subsequent January 2013 rating decision. Accordingly, those issues are not before the Board at this time. The Veteran appealed the denial of the claim for compensation for PTSD or a major depressive disorder under the provisions of 38 U.S.C.A. § 1151 to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 order, the Court granted a Joint Motion for Partial Remand. This appeal has been returned to the Board for action consistent with the Joint Motion. The development requested by the Board in July 2011 for the claims for service connection for a dental or jaw disorder and a thoracolumbar spine disorder have been completed, and these appeals have also been returned to the Board for further appellate review. The Veteran indicated prior to the May 2006 Board decision that she wished to testify at a personal hearing before a Veterans Law Judge; however, she withdrew that request for a hearing in February 2006. No further request for a personal hearing has been received at this time. The issue of entitlement to an earlier effective date for service connection for fibromyalgia 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 it, and it is referred to the AOJ for appropriate action. 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 Veteran claims she has developed PTSD as a result of an incident she believes she witnessed during treatment at the St. Louis VA Medical Center in December 2002. Specifically, she believed that she witnessed the murder or euthanasia of an elderly woman in the bed next to her own. She notes that this may have been a hallucination induced by medications that were incorrectly administered by VA personnel. In July 2011, the Board denied the Veteran's claim on the basis that there was no corroborating stressor. Rather, the evidence indicated that the perceived euthanasia was a hallucination experienced by the Veteran. However, the June 2012 Joint Motion found fault with this analysis. Specifically, it was found that the even a hallucination could potentially qualify as a stressor inducing PTSD- this was deemed a medical question. Per the Joint Motion, in finding that a hallucination could not constitute a stressor, the Board improperly made a medical conclusion and on that basis the July 2011 decision was vacated. Again, as the record presently stands, there is no independent medical evidence of record addressing the question of whether a hallucination experienced by the Veteran could constitute a stressor and ultimately cause PTSD. Therefore, a medical opinion must be obtained on this point. The Joint Motion further noted the Veteran's theory rests in part on the claim that her medication, which apparently included Paxil and morphine was administered incorrectly during her December 2002 treatment, which led to her hallucinations. The Board was requested to further address this theory, and finds that a medical opinion as to whether or not the medication was properly administered must also be obtained. Furthermore, while the treatment records from the December 2002 hospitalization have been obtained, they do not appear to include nursing notes, medication records, or other records that might indicate the medications she was administered, as well as the dosages she was given and the time and manner they were delivered. An attempt to obtain these records should be conducted. In addition, the Joint Motion noted that an Inspector General (IG) report was apparently prepared subsequent to an investigation of the Veteran's allegations. It further noted that while VA was unable to obtain this report from the RO, there is no indication that a request for such a report was made to either the IG office, or to the Special Agent who conducted the investigation. On this basis, the Board will request that additional attempts be made to obtain the IG report in question, or to verify that the report is not obtainable. Regarding the Veteran's claim of service connection for a dental or jaw disorder, she contends that this disability has developed secondary to the whiplash injury she sustained in a motor vehicle accident in service. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran has not been provided with a VA examination in conjunction with her claim. The service treatment records confirm that she sustained a whiplash injury due to a car accident in December 1966. She has submitted private medical records that confirm a current diagnosis of temporomandibular joint disorder (TMJ). Moreover, she has submitted two different medical texts that state one of the potential disabilities that can result from whiplash is TMJ. The Board finds that the Veteran should be scheduled for a VA examination in order to determine whether or not there is a causal relationship between her whiplash injury in service and her current TMJ. With respect to the Veteran's claim of service connection for a thoracolumbar spine disorder, she argues that this is also the result of the whiplash injury sustained in service, as well as the failure of the military to provide her with proper physical therapy following her injury. The July 2011 remand requested that the Veteran be scheduled for a VA examination of her claimed thoracolumbar spine disability. Among other things, the examiner was to opine as to whether or not the Veteran's scoliosis was congenital and, if so, whether it was a congenital defect or congenital disease. If it was found to be a congenital defect, the examiner was to opine as to whether any additional super-imposed disease of the thoracolumbar spine were aggravated beyond the normal progression of the disease due to active service, to include the December 1966 motor vehicle accident. The Veteran was afforded a VA examination in October 2012, at which time the examiner opined that scoliosis was a congenital defect. He further opined that the additional diagnosis of spondylolisthesis of L4 to L5 with subsequent lumbar fusion was a super-imposed disease. However, the examiner did not provide any additional opinion as to aggravation. Additionally, in expressing the October 2012 opinion, the examiner explained the definition of a super-imposed disease in this case. In regard to the spondylolisthesis of L4 to L5 with subsequent lumbar fusion, he stated "That is a disease that is not caused by scoliosis but exists concurrently with scoliosis." Thus, it follows that the spondylolisthesis of L4 to L5 with subsequent lumbar fusion may have been the direct result of an injury in service, such as the whiplash with resulting low back pain, regardless of any question of aggravation. The examiner did not provide an opinion as to direct causation. Finally, the October 2012 examination report notes that arthritis of the thoracolumbar spine has been documented by imaging studies. The examiner did not express any opinion pertaining to arthritis. In view of the both the additional questions raised by the examination report and those that were not fully answered, the Board finds that the report should be returned to the examiner in order to obtain supplemental opinions. Accordingly, the case is REMANDED for the following action: 1. Contact the VA Inspector General's office and request a copy of the report of the investigation conducted in response to the Veteran's allegation that she witnessed the murder or euthanasia of her roommate at the VA Medical Center in St. Louis, Missouri. If this is unsuccessful, obtain the name of the agent who conducted the investigation and contact this person to request a copy of the report. Any other source that might be suggested by these contacts should also be contacted. All requests and responses must be documented. If after all attempts and sources are exhausted and the report is unobtainable, a formal finding to this effect should be entered in the record. 2. Obtain all nursing records and medication records pertaining to the Veteran's December 2002 surgery and subsequent hospital stay at the VA Medical Center in St. Louis, Missouri and associate them with her claims folder. 3. After the records requested above have been obtained and associated with the claims folder, schedule the Veteran for a VA psychiatric examination. This examination must be conducted by a psychiatrist (M.D.), and not a psychologist. All indicated tests and studies should be conducted. The claims folder must be reviewed in conjunction with this examination, and the examination report must note that it has been reviewed. A copy of this remand should be provided to the examiner. The Veteran's claimed stressor of having either witnessed or having hallucinated the murder or euthanasia of another patient while admitted to the St. Louis VA Medical Center in December 2002 should be reviewed. After the completion of examination and review of the record, the examiner must attempt to express the following opinions: a) Does the Veteran continue to have a diagnosis of PTSD? b) Regardless of whether or not the Veteran continues to have a current diagnosis of PTSD, the September 2009 VA examination and diagnosis of PTSD must be reviewed. Is it as likely as not that the Veteran has or has ever had a diagnosis of PTSD based on her claimed stressor of witnessing the death of a patient at the VA Medical Center? c) If the Veteran is determined to have or to have had a diagnosis of PTSD based on the events she believed she witnessed at the VA Medical Center, assume that these events were a hallucination. Is it as likely as not that a hallucination can serve as a valid stressor and therefore result in the development of PTSD? d) If it is determined that a hallucination can serve as a stressor that leads to the development of PTSD, review the records pertaining to the medications administered to the Veteran just prior to her hallucination. Is it as likely as not that these medications caused the hallucination? If yes, then provide an opinion as to whether or not the hallucination was either: (i) caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing this medical treatment; that is, VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent; or (ii) the result of an event that was not reasonably foreseeable; that is, was the event one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided, or was the risk of such event the type of risk that a reasonable health care provider would not have disclosed in connection with the informed consent procedures of VA. If the examiner determines that he or she is unable to provide any portion of the requested opinion without resort to speculation, the reasons and bases for that determination should be provided. Any missing records that might enable the examiner to provide the requested opinion should be identified. Afterward, an attempt should be made to obtain these records and the claims folder returned to the examiner to obtain the opinion if the records are obtained. 4. Schedule the Veteran for a VA dental examination. The claims folder must be reviewed in conjunction with this examination, and the examination report must note that it has been reviewed. All indicated tests and studies should be conducted. At the completion of the examination, the examiner should attempt to express the following opinions: a) Does the Veteran currently have a diagnosis of TMJ or any other dental disability or disability of the jaw? The previous diagnoses of such a disability in the record should be noted. b) If the Veteran is determined to have a diagnosis of TMJ or any other dental disability or disability of the jaw, is it as likely as not that this disability was incurred due to the December 1966 motor vehicle accident and residual whiplash she sustained during active service, or any other event or injury during service? c) If any current dental or jaw disability is determined not to be related to any injury or event in service, is it as likely as not that this disability was incurred due to or aggravated by the Veteran's service connected fibromyalgia, anxiety disorder, cervical spine disability, radiculopathy of the upper extremities, or bilateral carpal tunnel syndrome? If the examiner determines that a current dental or jaw disability was aggravated by a service connected disability, is it possible to determine a baseline level of severity for this disability prior to aggravation? If so, please describe this baseline. If the examiner determines that they are unable to provide any portion of the requested opinion without resort to speculation, the reasons and bases for that determination should be provided. Any missing records that might enable the examiner to provide the requested opinion should be identified. Afterwards, an attempt should be made to obtain these records and the claims folder returned to the examiner to obtain the opinion if the records are obtained. 5. Return the Veteran's claims folder to the examiner who conducted the October 2012 VA orthopedic examination. The examiner should review the claims folder again, and then provide these additional opinions: a) Are the degenerative changes of the thoracolumbar spine noted in the October 2012 examination report considered to be a super-imposed disease that exists concurrently with the congenital scoliosis defect? b) Is it as likely as not that the super-imposed spondylolisthesis of L4 to L5 with subsequent lumbar fusion (and/or arthritis if also determined to be a super-imposed disease) was incurred in or aggravated by an injury or event during active service, to include the December 1966 automobile accident and the whiplash that resulted? If the examiner who conducted the October 2012 examination is no longer available, the claims folder must be provided to another examiner with equal qualifications in order to obtain the requested opinions. An additional examination should be conducted only if deemed necessary by the examiner. If the examiner determines that they are unable to provide any portion of the requested opinion without resort to speculation, the reasons and bases for that determination should be provided. Any missing records that might enable the examiner to provide the requested opinion should be identified. Afterward, an attempt should be made to obtain these records and the claims folder returned to the examiner to for an opinion if the records are obtained. 6. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). 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). _________________________________________________ ERIC S. LEBOFF 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).