Citation Nr: 1317246 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-15 555 ) 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 bipolar disorder. 2. Entitlement to an initial rating in excess of 10 percent for cervical myositis and bulging disc. 3. Entitlement to an initial rating in excess of 10 percent for thoracic discogenic disease and lumbosacral bulging disc. 4. Entitlement to service connection for a disability manifested by dizziness. 5. Entitlement to service connection for a disability manifested by chest pain. 6. Entitlement to service connection for a left knee disability, to include medial collateral ligament sprain, to include as secondary to thoracic discogenic disease and lumbosacral bulging disc. 7. Entitlement to service connection for a right leg disability, to include as secondary to thoracic discogenic disease and lumbosacral bulging disc. 8. Entitlement to service connection for headaches. 9. Entitlement to service connection for a respiratory disability. 10. Entitlement to service connection for a psychiatric disability other than bipolar disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. 11. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jonathan Bruce, Attorney ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty in the Army Reserve from April 16, 1998 to January 27, 2000 and from October 21, 2005 to October 20, 2006. He also had other periods of active duty for training and inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Juan, Puerto Rico. In the July 2007 decision, the RO granted service connection for cervical myositis/bulging disc and for thoracic discogenic disease, lumbosacral bulging disc. Each disability was assigned an initial rating of 10 percent, effective from October 21, 2006. The RO denied service connection for dizziness, chest pain, left knee medial collateral ligament sprain, right leg pain, headaches, a respiratory condition, and dysthymic disorder. The Veteran perfected an appeal of all nine of these issues. The claim of entitlement to service connection for dysthymic disorder has been recharacterized as a claim of entitlement for a psychiatric disorder to include PTSD, bipolar disorder, dysthymic disorder, and major depressive disorder in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in claims for higher ratings when the issue of unemployability is raised by the record. The Veteran has raised the issue of entitlement to TDIU due to his service-connected disabilities, including his back and neck disabilities for which he seeks higher ratings. Therefore, entitlement to TDIU is included on the title page. The Veteran requested a videoconference hearing before a Board member on his appeal form, but wrote to cancel the hearing in May 2012. His hearing request has been withdrawn. The issues of entitlement to an initial rating in excess of 10 percent for cervical myositis and bulging disc and for thoracic discogenic disease and lumbosacral bulging disc; entitlement to service connection for dizziness, chest pain, a left knee disability, a right leg disability, headaches, a respiratory disability; and a psychiatric disability other than bipolar disorder, to include PTSD, schizoaffective disorder, and major depressive disorder; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT Bipolar disorder is related to service-connected neurodermatitis and post-inflammatory hyperpigmentation (previously an unspecified skin condition of the bilateral calves and forearms), obstructive sleep apnea, residuals of a left ankle fracture, the cervical myositis and bulging disc, and the thoracic discogenic disease and lumbosacral bulging disc. CONCLUSION OF LAW The criteria for service connection for an adjustment disorder with depressed mood and dysthymia are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychosis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be established on a secondary basis for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder that is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible -as distinguished from credibility and weight, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records do not reflect treatment or diagnosis of bipolar disorder or any other psychiatric disorder. The Veteran was afforded a VA psychiatric examination in March 2007. He reported symptoms of poor sleep, irritability, verbal and aggressive reactions, and violent traffic reactions. He also complained of severe leg and back pain. The examiner diagnosed dysthymic disorder, but did not provide a nexus opinion. A VA treatment record dated in November 2007 shows a diagnosis of adjustment disorder with mixed features of anxiety and depression, based on the Veteran's report of having current symptoms of irritability, poor impulse control, and inability to sleep; and a past mental history of anxiety and depression. In support of his claim, the Veteran submitted lay statements from former co-workers in August 2008. These coworkers recalled that the Veteran had complained of back pain and difficulty sleeping at work, and it affected his behavior at work by causing stress and anxiety. The Veteran also submitted a copy of a letter from his former employer (the Metropolitan Detention Center in Guaynabo, Puerto Rico) to show that he had been referred to the Employee Assistance Program (EAP) in July 2008, due to what was described as a "noticeable change in his behavior" and work-related stress. The Veteran was afforded a VA psychiatric examination in June 2010. Following a review of the claims file, interview, and clinical evaluation, a VA examiner provided a diagnosis of bipolar disorder, NOS. The examiner stated that there was no other mental disorder found. The examiner further opined that this disorder was "most least as likely as not" caused by or a result of his service-connected disabilities of an unspecific skin condition of the bilateral calves and forearms, obstructive sleep apnea, residuals of a left ankle fracture, the cervical myositis and bulging disc, and the thoracic discogenic disease and lumbosacral bulging disc. The examiner's rationale was that there was no evidence of psychiatric complaints, findings, or treatment prior to or during military service. However, there was evidence of psychiatric complaints, findings, and treatment within one year of discharge from military service. The examiner also noted that a November 2007 treatment record showed a diagnosis of adjustment disorder with mixed features of anxiety and depression. A current diagnosis of bipolar disorder, NOS is established by the record. Having established a current disability, the remaining issue is whether it is related to the Veteran's active duty service, or a service-connected disability. The June 2010 VA opinion establishes that the Veteran's bipolar disorder is secondary to his service-connected neurodermatitis and post-inflammatory hyperpigmentation (previously an unspecified skin condition of the bilateral calves and forearms), obstructive sleep apnea, residuals of a left ankle fracture, the cervical myositis and bulging disc, and the thoracic discogenic disease and lumbosacral bulging disc. This opinion is competent, persuasive, and favorable to the Veteran's appeal. The Board further notes that this opinion is consistent with the evidence of record and there are no opinions to the contrary. Accordingly, service connection for bipolar disorder, NOS is granted. ORDER Service connection for bipolar disorder is granted. REMAND The Veteran seeks initial ratings in excess of 10 percent for his service-connected cervical myositis and bulging disc and for the thoracic discogenic disease and lumbosacral bulging disc. He was last afforded VA examinations for these disabilities in August 2011. He has not alleged that these disabilities have worsened in severity since the last examination, however due to the current state of the record as discussed below; a decision on these issues by the Board at this time would be premature. The Veteran also seeks service connection for dizziness, chest pain, a left knee disability, a right leg disability, headaches, and a respiratory disability. He was afforded a VA general medical examination in March 2007. The examiner did not provide any diagnoses with respect to the claimed dizziness, chest pain, headaches, or a respiratory disability, other than the currently service-connected obstructive sleep apnea. The examiner also did not discuss whether any of these conditions were related to service. At a VA joints examination in March 2007, another examiner provided a diagnosis of left knee medial collateral ligament strain, but offered no opinion regarding causal nexus. This examiner did not specifically indicate whether a current right leg disability exists. For these reasons, these VA examinations are inadequate. When VA undertakes to examine a veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was not been provided with any other pertinent VA examinations, nor does the record contain sufficient evidence to adjudicate theses issues. Significantly, the Veteran now alleges that his left knee and right leg disabilities are secondary to his service-connected thoracic discogenic disease and lumbosacral bulging disc as the Veteran. Therefore, new examinations with nexus opinions are necessary. In this decision, the Board has granted service connection for bipolar disorder as secondary service-connected disabilities. However, the record contains diagnoses aside from bipolar disorder, including intermittent PTSD, schizoaffective disorder, and major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In statements submitted in June 2010 and October 2012, the Veteran indicated that he did not have any mental disorders or problems prior to service. He asserted that he developed such problems (i.e. persistent difficulty with depression and social isolation) during his second period of active duty service that began in October 2005, and that these problems have continued since then. He contends that his current psychiatric disabilities stem from being ordered to active duty in October 2005 without a valid contract, and being forced to remain in service. He also asserted that his psychiatric difficulties were related to excessive physical training and his duties during this period of service. His brother-in-law, ex-girlfriend, and two friends submitted competent lay statements in June 2010 corroborating his account of what has occurred since service in his terms of his noticeable behavioral changes, etc. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In light of the above, on remand the Veteran is to be afforded a new VA examination to determine the nature and etiology of his current psychiatric disorders, other than bipolar disorder, shown by the record to include major depressive disorder, PTSD, and schizoaffective disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the RO must also send notice to the Veteran regarding service connection for PTSD. His service personnel records must also be obtained and associated with the claims file. 38 C.F.R. § 3.159. Documents submitted by the Veteran and his attorney indicate that he is now in receipt of Social Security Administration (SSA) disability benefits for a psychiatric disability and a back disability, in addition to other problems. As the Veteran is service-connected for thoracic discogenic disease and lumbosacral bulging disc and bipolar disorder, and argues that these disabilities are partly responsible for his unemployability, the SSA records appear to be pertinent to the appeal. While some SSA records have been incorporated into the claims file, a complete copy of the Veteran's SSA disability file is not currently of record. On remand, a complete copy of the Veteran's SSA disability file must be associated with the file. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Additionally, a July 2008 Department of Labor form shows the Veteran complained of a pulled hamstring while training at work after service. In an August 2008 statement, the Veteran indicated that it was his left hamstring that had been injured in July 2008. The Veteran also submitted a letter from his former employer (the Metropolitan Detention Center in Guaynabo, Puerto Rico) regarding referral to the Employee Assistance Program (EAP) in July 2008 due to a noticeable change in his behavior. Furthermore, two letters from the Office of Personnel Management (OPM) dated in July 2012 indicate that the Veteran was found disabled from his position at the Federal Bureau of Prisons in Guaynabo, Puerto Rico, due to a mental health condition and was approved for disability retirement. As the Veteran is seeking service connection for a left knee disability and alleges that he is unemployable partly due to a psychiatric disability (which the Board has now service-connected), these records are pertinent to the appeal. On remand, the RO should obtain any additional pertinent records from the Office of Workers' Compensation Program (OWCP) benefits, the Office of Personnel Management (OPM), and from the Metropolitan Detention Center in Guaynabo, Puerto Rico regarding the Veteran's referral to the EAP. The Veteran alleges, and information in the claims file indicates, that he has received VA treatment since his discharge from service. The record also reflects that he had at least in-patient hospitalizations related to his psychiatric disorders between 2010 and 2011; however, the records are not in the paper or virtual file. Currently, the claims file includes very few VA treatment records. On remand, any and all outstanding VA treatment records dated since October 2006, to include in-patient and out-patient treatment records, must be associated with the claims file. The Veteran has indicated he has receives treatment at the San Juan VAMC, but he should be asked to identify treatment at other VA facilities as well. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Finally, as the outcome of the Veteran's TDIU claim might be impacted by the outcome of the service connection and the initial rating claims, this issue must also be remanded to the AOJ in accordance with Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) or appropriate service department to obtain complete copies of the Veteran's service personnel records from his second period of active duty from October 2005 to October 2006. If the records are not found, a formal finding of unavailability must be issued and the Veteran must be notified. 2. Send the Veteran notice of the criteria necessary to substantiate a claim of service connection for PTSD. 3. Contact the Veteran and request that he identify any private medical providers that may have records relevant to his claims that are not already of record. After securing any necessary authorization, obtain any non-duplicative treatment records, to include medical records from Dr. Acevedo-Acevedo, Dr. Alonso, Dr. Polo, as well as the Metropolitan Detention Center in Guaynabo, Puerto Rico, regarding the Veteran's referral to the EAP. All efforts to obtain these records must be documented in the claims file. 4. Obtain any and all VA treatment records dated since October 2006, to include any in-patient/partial in-patient psychiatric hospitalization records, associate them with the claims file. All efforts to obtain these records must be documented in the claims file. 5. Obtain from the SSA any additional records pertinent to the Veteran's claim for SSA disability benefits and any medical records concerning that claim. All efforts to obtain the records should be fully documented; a negative response should be requested if no records are available. 6. With any necessary assistance from the Veteran, contact the OPM and the OWCP and obtain the Veteran's disability records from the Metropolitan Detention Center in Guaynabo, Puerto Rico. If any of the records are unavailable, a negative reply is requested and should be added to the file. 7. After any additional evidence is secured, schedule the Veteran for an appropriate examination to assess the current nature and severity of his cervical myositis and bulging disc and thoracic discogenic disease and lumbosacral bulging disc disabilities. The claims folder must be made available to and reviewed by the examiner, and all necessary tests, including X-rays and range of motion studies must be conducted. The examiner should express the ranges of motion studies in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. The examiner must also report the extent of the Veteran's pain-free flexion and extension. Also, note whether there is any neurologic impairment associated with either disability. 8. After associating any additional evidence with the claims file, the Veteran should be afforded an appropriate VA examination(s) to determine the etiology of his claimed left knee disability, right leg disability, headaches, respiratory disability (other than obstructive sleep apnea), chest pain, and dizziness. The claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination and such review should be reflected in the report provided. The examiner is to specifically indicate whether the Veteran's claimed right leg disability, respiratory disability, chest pain, and dizziness are manifested as a result of underlying clinical diagnoses. Thereafter, the examiner must opine as to whether it is at least as likely as not that the claimed left knee disability, right leg disability, headaches, respiratory disability (other than obstructive sleep apnea), chest pain, and dizziness had: a) onset in service; or b) onset within one year of active duty service (i.e. by October 2007); or, c) are otherwise related to a period of active duty service. The examiner must also indicate whether it is at least as likely as not that any of the claimed disabilities are either caused or aggravated by any of the Veteran's service-connected disabilities. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A complete rationale for any opinion expressed must be provided. If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be provided, to include a recitation of any missing facts that would permit a non-speculative opinion. 9. After associating all outstanding records with the claims folder, schedule the Veteran for a VA psychiatric examination. The claims file should be reviewed by the examiner and all necessary tests should be conducted. The examiner must opine as to whether it is at least as likely as not that any currently diagnosed psychiatric disorder other than bipolar disorder (to include PTSD and major depressive disorder) had onset during service or is otherwise causally related to service or a service-connected disability. The examiner should also state whether a psychosis manifested within one year of separation from service (i.e. by October 2007). The examiner should attempt to reconcile the multiple psychiatric diagnoses of record, and in doing so, a diagnosis of PTSD must be ruled in or excluded. In offering these assessments, the examiner must acknowledge and discuss any competent lay report regarding any continuity of symptoms since service. The examiner is also asked to opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his current psychiatric disorder, renders him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed must be provided. If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be provided, to include a recitation of any missing facts that would permit a non-speculative opinion. 10. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the appeal, to include entitlement to a TDIU. If any determination remains unfavorable, the Veteran should be provided with a Supplemental Statement of the Case that summarizes the pertinent evidence and fully cites the applicable legal provisions. He should be afforded an opportunity to respond before the case 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). ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs