Citation Nr: 1320627 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 05-13 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for schizophrenia and depression. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for erectile dysfunction. 5. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and D.M. ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1964 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In a decision in November 2007, the Board reopened the claim of service connection for PTSD and denied the claim on the merits. The Board also denied the claims of service connection hypertension, erectile dysfunction, sleep apnea, and skin disease. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2009, in a Memorandum Decision, the Court did not disturb the Board's finding to reopen the claim of service connection for PTSD. The Court affirmed the Board's decision, denying service connection for a skin disease. The Court did vacate and remand the remaining claims of service connection. In November 2010, the Board remanded the claims to ensure compliance with the Court's order. In a rating decision in July 2012, the RO denied the claims of service connection for Parkinson's disease and for skin cancer. The Veteran has the remainder of the one year period from the date of the notice of the RO's decision to file a notice of disagreement. The claims of service connection for PTSD, hypertension, erectile dysfunction, and sleep apnea are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT In May 2007, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the claims of service connection for schizophrenia and depression. CONCLUSION OF LAW The criteria for withdrawal of the appeal of service connection for schizophrenia and depression have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Because of the facts presented, it is necessary to make plain the scope of the psychiatric disorder on appeal. Generally, a claim of service connection for a psychiatric disorder is not limited to any specific psychiatric diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In the rating decision in November 2004, the RO bifurcated the claim of service connection for PTSD and the claim of service connection for schizophrenia and depression. In May 2007 at hearing before the Board hearing and before the Board decided the claims on the record the Veteran withdrew from the appeal the claims of service connection for schizophrenia and depression. The withdrawal of the claim and the limitation of the scope of the remaining claims was noted in the Board's decisions in November 2007 and in November 2010. Clearly, the Veteran has limited the scope of the appeal for a psychiatric disorder to service connection for PTSD. For this reasons, the claims of service connection for schizophrenia and depression, are dismissed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.204. ORDER The claims of service connection for schizophrenia and depression are dismissed. REMAND On VA examination in August 2012, there are internally inconsistences, which cannot be reconciled, and the examination is inadequate to decide the claim of service connection for PTSD. Therefore a new examination under the duty to assist is needed. A decision on the claims of service connection for hypertension, erectile dysfunction, and sleep apnea is deferred until the claim of service connection is finally adjudicated. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records Drs. F. Minirth and P. Muthappa and the records from the East Texas Medical Center and Paris Regional Medical Center since August 2011. 2. Obtain VA records since August 2012. 3. Afford the Veteran a VA psychiatric examination by a VA examiner, who has not previously examined the Veteran. The examination should include the Clinician-Administered PTSD Scale (CAPS) test by a VA psychiatrist or psychologist. The VA examiner is asked to determine: a). Whether the Veteran has PTSD and, if so, b). Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that PTSD is related to the Veteran's period of military service, including fear of hostile military activity while serving in Vietnam. In formulating the opinion, the VA examiner is asked to consider the Veteran's statements, the service treatment records, including an August 1965 psychiatric evaluation; VA examinations in May 1991, October 2004, October 2005, January 2006, March 2011, and August 2012; VA records from May 1994 to January 2011, VA psychiatric assessments in January 2005 and in June 2005, and the psychiatric assessments of private physicians, B. Muthappa, M.D.; and F. Minirth, M.D. The Veteran's file must be made available to the VA examiner for review. 4. After the requested development is completed, adjudicate the claim of service connection for PTSD on the merits. If additional evidence is received that bears on the claims for hypertension, erectile dysfunction, and sleep apnea, adjudicate the claims as well. If any benefit sought is are denied, then provide the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs