Citation Nr: 1324579 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-41 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of incisional hernia surgery to include rectus diastasis. 2. Entitlement to service connection for an acquired psychiatric disability to include PTSD, major depressive disorder, adjustment disorder, and generalized anxiety disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1984 and from February 2004 to May 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions in January 2008 and August 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Veteran initially filed a claim for PTSD, but there is evidence he has been diagnosed with other mental health disabilities, namely major depressive disorder, generalized anxiety disorder, and adjustment disorder with depression and anxiety. In addition, the Veteran filed a claim for service connection for an abdominal hernia condition, but the evidence reveals a current diagnosis of rectus diastasis unrelated to a hernia. As there is more than one diagnosis for both service connection for a psychiatric disability and for service connection for an abdominal pain disability, and the Veteran is a lay person without medical knowledge, the Board has restyled the claims as shown on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). 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 As to the claim for service connection for residuals of incisional hernia surgery, the Veteran underwent a spleenectomy in 1979 prior to entering service. In June 2006 while on active duty, the Veteran noticed a bulge and sought medical attention. Because the symptoms appeared to originate near the surgical site for the spleenectomy, his caregivers believed he had developed an incisional hernia and the Veteran underwent surgery for repair in July 2006, again while the Veteran was on active duty. The physicians did not find an incisional hernia, but determined that the Veteran had a rectus diastasis, which did not require surgical repair. Since that surgery, however, the Veteran has suffered pain and discomfort in the abdomen area. A VA examination was conducted in November 2007. The VA examiner diagnosed a minimal central abdominal rectus divarication or diastasis medial to the scar from the July 2006 surgery, and opined that surgery did not cause the rectus divarication or diastasis. The examiner did not, however, discuss what was causing the Veteran's chronic discomfort and abdominal pain and whether those symptoms were related to the rectus divarication or diastasis, the incisional hernia surgery, or something else. Thus, the examiner failed to explain what was the etiology of the Veteran's symptoms. The Board notes that a symptom such as pain, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). To establish entitlement to VA disability compensation, there must be a current disability. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In this regard, the Board notes the contemporaneous medical records following the surgery do not determine the cause of the Veteran's symptoms, including pain, although a Medical Evaluation Board report dated in January 2008 conjectured that the cause might be nerve entrapment or scar tissue. The Board therefore finds the report inadequate and the Veteran should be provided a second VA examination to provide the missing information, that is, identification of the disability causing the Veteran's chronic pain and an opinion whether it is related to service. See 38 U.S.C.A. § 5103A (d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Furthermore, the Veteran has provided letters from his current private physician, Dr. Lawrence A. Hansen, but his medical records have not been provided. The Veteran also has not provided the medical records of the private surgeon, Dr. Gregory S. Gaborek, who performed the July 2006 surgery. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). As to the claim for service connection for an acquired psychiatric disability, the Veteran is receiving treatment at VA for his mental health symptoms. In July 2009, his mental health care provider issued a letter indicating she had seen the Veteran that month and had been treating him over time since 2008. The file, however, only contains VAMC records for September through December 2008. The Board has determined that the missing records should be associated with the file. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Therefore, a complete set of VAMC records from separation from service to the present should be requested to ensure that the Board has all relevant VAMC records. In addition, although a VA examiner in March 2011found a relationship between his diagnosis of generalized anxiety disorder and the Veteran's stressors, the RO denied the claim because there was no evidence the stressors occurred. Furthermore, the events that triggered his mental health symptoms occurred while he was assisting the United States Air Force Security Forces and the RO noted the Veteran's MOS was that of a fuel specialist. The RO concluded such duties were inconsistent with his MOS. The Veteran testified that in 2004, he was reactivated from the Ohio Air National Guard into the United States Air Force to augment the 6th Security Forces Squadron at MacDill Air Force Base. On one occasion, he was assigned to stand guard while the United States Air Force Security Forces investigated a suicide of another service member. The Veteran testified that at that time, he could see the blood and other details of the room. On another occasion, he witnessed the shooting and death of an intruder at Selfridge Air Force Base. There is evidence in the file that the Veteran was assigned to duties as a security force augmenter. The file contains a citation for an Air Force Achievement Medal stating he served in such a capacity from September 2004 to September 2005 with the 127th Security Forces Squadron. The Veteran testified that he was assigned to the 127th squadron and also to the 88th Security Forces Squadron at Wright Patterson Air Force Base. Therefore, the Board has determined that an attempt should be made to verify the Veteran's testimony concerning the suicide investigation and the shooting incident. The RO should contact the NPRC and the appropriate custodian for any other records concerning the Veteran, and request verification that the Veteran was involved in the investigation of suicides while he was augmenting the Security Force investigators, even if he only acted as a guard, and the shooting of an intruder incident. In this regard, the Board notes there was an attempt to obtain the Veteran's personnel file and some records were received, such as the citation noted above, but other documents such as the orders assigning him to augment the Security Force Squadrons or dates and locations of assignments are missing. The Board there has determined that a second request should be made for the Veteran's personnel records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records of treatment of the Veteran at the Ann Arbor VAMC and associated outpatient clinics from September 2006 to the present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. The Veteran should be notified of any failure to obtain the requested records. 2. Ask the Veteran to submit or authorize VA to obtain the records of Dr. Lawrence A. Hansen and Dr. Gregory S. Gaborek. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran that he may submit any such records in his possession. 3. Ask the Veteran to identify the approximate date when the suicide investigation and the shooting of an intruder occurred. The RO should advise the Veteran that record searches are feasible only if the NPRC has an identified 90 day period to encompass the search. The RO should also advise the Veteran that the failure to provide the information may result in a VA examination and subsequent decision based upon the evidence of record. 4. The RO should also request the Veteran's complete service personnel file from the United States Air Force and the Ohio National Guard. 5. Request from the NPRC, and any other appropriate source, to include the National Archives and Records Administration, or any other appropriate custodian of records for the period identified by the Veteran from February 2004 to May 2006, the unit roster lists, daily duty status reports, investigative reports, time orders, call sheets, run sheets, dispatch logs, or other documents that relate to whether the Veteran may have been involved in a suicide investigation while assigned to the MacDill Air Force Base or a shooting of an intruder at Selfridge Air Force Base, while assigned to augment Air Force Security Forces. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 6. After the medical records development requested above is completed, provide the Veteran a VA examination to determine the etiology of his current abdominal symptomatology, including pain. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner is asked to determine whether the Veteran has a current disability of the abdomen, including as manifested by pain, and offer an opinion whether it is at least as likely as not (50 percent probability) that any current abdominal disability had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is asked to specifically address the relationship of the Veteran's continued symptomatology to any abdominal diagnosis. The examiner is also asked to consider a lay person is competent in describing symptoms at the time which supports a later diagnosis by a medical professional. Lay evidence concerning both occurrence and ongoing symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. 7. After the foregoing development requested is completed, readjudicate the claims for service connection for an acquired psychiatric disorder and for service connection for the residuals of incisional hernia surgery. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. Powell 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).