Citation Nr: 1318120 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-06 932A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, major depressive disorder, anxiety, dysthymia, and an adjustment disorder. 2. Entitlement to service connection for residuals of a back injury. 3. Entitlement to service connection for residuals of a right leg injury. 4. Entitlement to service connection for residuals of a neck injury. 5. Entitlement to service connection for a deviated nasal septum. 6. Entitlement to service connection for a sinus disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran had active service from August 1972 to May 1973. This appeal to the Board of Veterans Appeals (Board) arises from a January 2005 rating action that denied service connection for an acquired psychiatric disorder; residuals of back, neck, and right leg injuries; a deviated nasal septum; and a sinus disorder. In August 2007, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. A copy of the transcript is of record. In March 2008, and January 2010, the Board remanded this case for additional development. In March 2012, the Board reopened service connection claims for an acquired psychiatric disorder, residuals of a back injury and residuals of a right leg injury. The Board additionally denied claims for service connection for an acquired psychiatric disorder, residuals of a back injury, residuals of a leg injury, residuals of a neck injury, a deviated nasal septum, and a sinus disorder. The Veteran appealed these denials to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court granted a Joint Motion for Partial Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to the issues of service connection for (1) an acquired psychiatric disorder (2) residuals of a back injury (3) residuals of a right leg injury (4) residuals of a neck injury, (5) a deviated nasal septum, and (6) a sinus disorder and to remand the claims for reajudication in accordance with the JMR. With respect to the Veteran's claim for an acquired psychiatric disorder, the Board notes that his claim on appeal was characterized by the RO as only a claim for service connection for PTSD. However, while on appeal, the United States Court of Appeals for Veterans Claims (Court) addressed a case involving the scope of filed claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that [VA] obtains in support of the claim. A review of the claims file shows that the Veteran has been diagnosed with PTSD, depression, major depressive disorder, anxiety, dysthymia, and an adjustment disorder. The Board therefore finds that the Veteran's claim is not limited solely to PTSD. Instead, his claim is properly characterized broadly as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, major depressive disorder, anxiety, dysthymia, and an adjustment disorder. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Based on the November 2012 Joint Motion for Partial Remand, the Board finds that additional development is necessary prior to adjudication of the claims. Outstanding Records- The Veteran has indicated that there are potentially outstanding service treatment records from Fort Polk, Louisiana; Fort Riley, Kansas; and a field dispensary in "Grdfweir," West Germany. The RO should directly contact those 3 military medical facilities and obtain the Veteran's complete service treatment records, to include any records of treatment for psychiatric, neck, back, right leg, nasal, and sinus disabilities. Under 38 C.F.R. § 3.159(b), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(1). The Joint Motion specifically indicates that the RO must directly contact both Fort Polk and Fort Riley to attempt to obtain additional medical records. As such, this development should be completed. VCAA Notice- The Veteran has not received proper notification of the requirements for a claim of entitlement to service connection for PTSD based on in-service personal assault. In Gallegos v. Peake, 22 Vet. App. 329 (2008), the United States Court of Appeals for Veterans Claims (Court) held that in cases of alleged personal assault VA must first inform the claimant that he may submit alternative forms of evidence, that is, evidence other than service records, to corroborate his account of an in-service assault, and suggest potential sources for such evidence. Then, VA must assist him in the submission of alternative sources of evidence, by providing additional time for him to submit such evidence after receipt of the personal-assault letter and, where appropriate, by obtaining evidence on his behalf. The Court has emphasized that in claims of service connection for PTSD based on in-service personal assault pursuant to 38 C.F.R. § 3.304(f), the VA has a heightened burden of VCAA notification. Id. As the Veteran has not been provided with this VCAA notice during the pendency of this appeal, a remand is required for the AMC/RO to provide the Veteran with a specific VCAA notice letter necessary for PTSD cases based on in-service personal assault or harassment. VA Examinations- In-service treatment records reflect treatment for a neck complaint in December 1972 and treatment for nasal congestion in February 1973. Moreover, the Veteran reported in an April 1973 report of medical history that he had experienced recurrent back pain, leg trouble, and psychological symptoms during his service. Current treatment records reflect diagnoses of psychological, lumbar spine, leg, cervical spine, and sinus disorders, and a deviated septum. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on documentation of complaints of psychological, back, leg, neck, and nose problems in service and current treatment for these disorders, the Board finds that a remand of the claims of service connection for an acquired psychiatric disorder, residuals of a back injury, residuals of a right leg injury, residuals of a neck injury, a deviated nasal septum and a sinus disorder is necessary. 38 U.S.C.A. § 5103A(d)(2); McLendon, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. The RO should directly contact the military medical facilities at Fort Polk, Louisiana; Fort Riley, Kansas; and a field dispensary in "Grdfweir," West Germany, at which the Veteran served with Company B, First Brigade, "S+T BOE" and obtain his complete service treatment records during the period from August 1972 to May 1973, to include any records of treatment for psychiatric, neck, back, right leg, nasal, and sinus disabilities. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims folder. 2. Send the Veteran a VCAA notice letter compliant with 38 C.F.R. § 3.304(f), as required for PTSD claims based on in-service personal assault or harassment. In particular, the notice must advise the Veteran that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the in-service stressor. Then allow the Veteran the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. The notice letter should also address entitlement to service connection for an acquired psychiatric disorder. 3. Following the development set forth in paragraphs 1 through 2 of this Remand, schedule the Veteran for a VA psychiatric examination. Following an examination of the Veteran, review of the relevant service records and other evidence in the claims file, the psychiatrist is asked to opine whether it is at least as likely as not (a 50 percent probability of greater) that the Veteran's claimed in-service personal assault occurred. The examiner must also offer an opinion, with full supporting rationale, as to whether the Veteran has PTSD meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, whether it is at least as likely as not that the Veteran's PTSD is the result of any in-service claimed event, to include the personal assault (if it's believed to have occurred). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). If a diagnosis of PTSD is not rendered, the examiner should reconcile his opinion with the findings of other medical evidence of record that diagnosed PTSD. If the examiner determines that there is inadequate evidence to support the occurrence of the in-service personal assault or determines that the clinical evidence does not support a diagnosis of PTSD, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder (to include: depression, major depressive disorder, anxiety, dysthymia, and an adjustment disorder) had its onset in service or is otherwise etiologically related to the Veteran's service, including any incident of service. In offering the above requested opinions, the VA examiner should specifically address the etiological opinions rendered in December 2004 (private opinion) and November 2003, September 2004, August 2007 (VA treatment records). The claims file must be made available to and reviewed by the examiner. The psychiatrist must provide a complete rationale for all opinions offered. In this regard, the examiner should note 1) the Veteran's alleged in-service stressors, which are found in written statements; 2) service treatment and personnel records; and 3) medical reports and statements of record. A complete rationale should be provided for all requested opinions. If the psychiatrist finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 4. Following the development set forth in paragraph 1 of this Remand, schedule the Veteran for an examination to determine the nature and etiology of his lumbar spine, right leg, and cervical spine disorders. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. a. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current lumbar spine disorder had its onset during the Veteran's active service or is otherwise causally related to his service. In offering the above requested opinion, pertaining to the Veteran's lumbar spine claim, the VA examiner should specifically address etiological opinions rendered at the Veteran's November 2002 VA examination, a June 2004 VA opinion by Dr. J. M, and September 2004 VA treatment record. b. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current right leg disorder had its onset during the Veteran's active service or is otherwise causally related to his service. c. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current cervical spine disorder had its onset during the Veteran's active service or is otherwise causally related to his service. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 5. Following the development set forth in paragraph 1 of this Remand, schedule the Veteran for an examination to determine the nature and etiology of his deviated nasal septum and sinus disorders. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current residuals of a deviated nasal septum had its onset during the Veteran's active service or is otherwise causally related to his service. In offering the above requested opinion, regarding the etiology of the Veteran's residuals of a deviated nasal septum, the VA examiner should specifically address the etiological opinion rendered in August 2007 (VA letter). The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current sinus disorder had its onset during the Veteran's active service or is otherwise causally related to his service. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sinus disorder is caused by, or aggravated by, his deviated nasal septum. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the sinus disorder (i.e., a baseline) before the onset of the aggravation. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's service connection claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). (CONTINUED ON NEXT PAGE) These claims 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). _________________________________________________ F. JUDGE FLOWERS 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).