Citation Nr: 1318726 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-13 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). 2. Entitlement to an increased rating for cognitive disorder and headaches with blurred vision, residuals of head injury currently rated as 30 percent disabling. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1993 to October 1993, from November 2001 to February 2002, and from December 2003 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The evidence shows that the Veteran has been diagnosed with various psychiatric diagnoses including PTSD, depression, anxiety disorder, depressive disorder, and mood disorder. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, the issue is characterized as noted on the cover page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on his part. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims can be reached. At the time of the March 2012 hearing before the Board, the Veteran submitted a copy of a favorable Social Security Administration (SSA) disability decision dated in September 2010. The decision indicates that the Veteran was awarded benefits based on diagnoses of severe post-concussive syndrome and PTSD. Aside from the favorable SSA decision, no other records from the SSA were associated with the claims file. As these records might contain information pertinent to the Veteran's claims, the AMC should attempt to obtain the Veteran's SSA records and associate them with the claims file. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that only relevant medical records or SSA disability records must be sought). See generally Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran testified that the symptoms of his service-connected cognitive disorder and headaches with blurred vision, residuals of head injury, had increased in severity since the time of his most recent VA examination in May 2009. Additionally, the Veteran indicated that his service-connected disability precluded gainful employment. Where there is evidence that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence that addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Consequently, the Veteran should be afforded a VA examination to assess the severity of his service-connected disability. VA considers diagnoses of mental disorders in accordance with the America Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). The DSM-IV criteria for a diagnosis of PTSD include: A) exposure to a traumatic event; B) the traumatic event is persistently experienced in one or more ways; C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness is indicated by at least three of seven symptoms; D) persistent symptoms of increased arousal are reflected by at least two of five symptoms; E) the duration of the disturbance must be more than one month; and F) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. DSM-IV. For a stressor to be sufficient for PTSD, the stressor must meet two requirements: (1) A person must have been exposed to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or a threatened death or serious injury, or a threat to the physical integrity of self or others and (2) the person's response [must have] involved intense fear, helplessness, or horror. Cohen v. Brown, 10 Vet. App. 128 (1997); DSM-IV; Pentecost v. Principi, 16 Vet. App. 124 (2002). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). The Veteran was afforded a VA examination to assess his clam for PTSD in March 2008. At that time, the Veteran underwent psychiatric testing and the examiner indicated that while the Veteran met the stressor criteria for PTSD, he did not meet the full constellation of symptoms and the severity that would be required for a diagnosis of PTSD. Although the examiner administered psychiatric testing and concluded that a diagnosis of PTSD was not appropriate, he failed to specify which criterion was not met. Moreover, the examiner rendered a diagnosis of depressive disorder (related to military service). The examiner did not specifically proffer an etiology opinion with rationale regarding the diagnosed depressive disorder nor did the examiner offer any opinion as to whether any of the other various psychiatric disorders included in the Veteran's private and VA treatment records are related to his active duty service. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). For the reasons noted, another VA mental disorders examination should be obtained. Associated with the claims file are VA outpatient treatment reports dated through February 2008 which reflect diagnoses and treatment for the Veteran's service-connected disabilities. Because it appears that there may be outstanding VA medical records that contain information pertinent to the Veteran's claims, an attempt to obtain any VA records dated after February 2008 should be made. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA outpatient treatment reports dated since February 2008. If the Veteran identifies any other relevant treatment records, those records should also be obtained. 2. Thereafter, the Veteran should be scheduled for a neuropsychiatric or other appropriate examination to determine the current severity of the service-connected cognitive disorder and headaches with blurred vision, residuals of head injury. The claims folder must be made available to and reviewed by the examiner and the examination must be conducted in accordance with the revised traumatic brain injury (TBI) examination worksheet. All indicated studies must be performed, and a complete rationale must be provided for all opinions expressed. Based on the examination results and a review of the claims folder, the examiner must describe the frequency and duration of the Veteran's headaches due to traumatic brain injury, as well as any manifestations of those headaches. The examiner must also indicate whether there is evidence of multi-infarct dementia associated with brain trauma. The examiner must also determine whether the symptoms associated with the Veteran's headaches are consistent with the symptoms of migraine headaches. If the examiner determines that his headaches are consistent with migraine headaches, the examiner should note the absence or presence of characteristic prostrating attacks; the frequency and duration of any such attacks; and the extent of any associated economic impact. The examiner must address all potential facets of traumatic brain injury, including: memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; and neurobehavioral, cognitive, communication, consciousness, psychiatric, or mental effects; and any pain-related conditions. For each of these, the examiner must address whether a disability or impairment in functioning is present, and if so whether it is at least as likely as not that this facet of traumatic brain injury is causally associated with the Veteran's head injury in service. The examiner must also assess the Veteran's physical impairments related to his traumatic brain injury, to include motor and sensory dysfunction, including pain of the extremities and face, visual impairment, hearing loss and tinnitus, loss of sense of smell and taste, seizures, gait, coordination, and balance problems, speech and other communication difficulties, neurogenic bladder, neurogenic bowel, cranial nerve dysfunctions, autonomic nerve dysfunctions, and endocrine dysfunctions. Upon completing the above examination, the examiner must consider the current severity of each of the Veteran's disabilities found to be related to TBI. All symptoms related to each problem should be described in detail. The report of the examination must include discussion of the Veteran's documented medical history and assertions. In addition, the examiner must elicit from the Veteran and record for evaluation purposes a full work and educational history. Following the above-requested examination of the Veteran and review of the claims file, the examiner must offer an opinion as to whether it is at least as likely as not that the Veteran's service-connected cognitive disorder and headaches with blurred vision, residuals of head injury, as well as any other residuals of the head injury that are found to be related to service, combine to preclude substantially gainful employment that is consistent with the Veteran's education and occupational experience. 3. Following completion of the development requested in paragraph 1, above, schedule the Veteran for a VA mental disorders examination. The examiner must review the claims file and must note that review in the report. The report of examination should include a complete rationale for all opinions expressed. Any necessary tests, including psychiatric testing, if appropriate, should be obtained. The examiner should attempt to reconcile any current opinion with the other opinions of record. The examiner should provide the following information: a.) Provide a full multiaxial diagnosis pursuant to DSM-IV. Specifically state whether each criterion for a diagnosis of PTSD is met. b.) If a diagnosis of PTSD is appropriate, comment upon the link between the current symptomatology and any in-service stressor reported by the Veteran and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's active service. c.) With regard to the variously diagnosed psychiatric disorders of record, including depression, anxiety disorder, depressive disorder, and mood disorder, the examiner should specifically state whether it is at least as likely as not (50 percent or greater probability) that any of the disorders are related to the Veteran's active service. 4. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case that specifically considers all evidence since the statement of the case, and allow the applicable time for response. Then, return the case to the Board. 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). _________________________________________________ BARBARA B. COPELAND 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).