Citation Nr: 1329746 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 00-06 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date earlier than November 16, 2010 for the grant of service connection for mood disorder. 2. Entitlement to an effective date earlier than June 11, 2010 for the grant of a separate initial 50 percent rating for limitation of extension of the left knee associated with postoperative degenerative joint disease, lateral patella subluxation, and chronic osteomyelitis. 3. Entitlement to service connection for bipolar disorder with psychosis, to include as secondary to service-connected mood disorder. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for a right hip disability. 6. Whether a reduction in the disability rating for tarsal tunnel syndrome of the left foot from 20 percent to 10 percent was proper. 7. Whether a reduction in the disability rating for tarsal tunnel syndrome of the right foot from 20 percent to 10 percent was proper. 8. Entitlement to an initial rating higher than 50 percent for mood disorder. 9. Entitlement to an initial rating higher than 50 percent for limitation of extension of the left knee associated with postoperative degenerative joint disease, lateral patella subluxation, and chronic osteomyelitis. 10. Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance of another person or on account of being housebound. 11. Entitlement to a certificate of eligibility for specially adapted housing. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1973. These matters come before the Board of Veterans' Appeals (Board) from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO denied entitlement to service connection for PTSD. In July 2000 and July 2002, the Veteran testified at hearings before a hearing officer and the undersigned at the RO, respectively. Transcripts of these hearings have been associated with the claims folder. In October 2002, the Board granted the Veteran's petition to reopen the claim of service connection for PTSD. In July 2003 and February 2007, the Board remanded the issue of entitlement to service connection for PTSD for further development. In May 2009, the Board denied the claim of service connection for PTSD. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2010 memorandum decision, the Court set aside the Board's May 2009 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. In June 2011, the Board again denied the claim of service connection for PTSD. The Veteran appealed the Board's denial to the Court. In March 2012, the Court set aside the Board's June 2011 decision and remanded the case for readjudication in compliance with directives specified in a February 2012 Joint Motion filed by counsel for the Veteran and VA. The Veteran's initial September 1999 claim of service connection for a psychiatric disability was limited to PTSD only and the Board has previously characterized the issue on appeal as being entitlement to service connection for PTSD. Service connection for bipolar disorder was denied in a separate September 2006 rating decision and a notice of disagreement was not submitted with respect to that decision. Nevertheless, the Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has re-characterized the issues on appeal as stated above. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In July 2011, the Veteran raised the issue of entitlement to an increased rating for a chronic lumbar strain with degenerative disc disease L5-S1 (see VA Form 21-526b dated in July 2011). Also, the issue of entitlement to a TDIU has been raised by the record. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to earlier effective dates for the grant of service connection for mood disorder and for the grant of a separate initial 50 percent rating for limitation of extension of the left knee associated with postoperative degenerative joint disease, lateral patella subluxation, and chronic osteomyelitis, entitlement to service connection for PTSD and a right hip disability, whether the reduction in the disability ratings for tarsal tunnel syndrome of the left and right foot from 20 percent to 10 percent was proper, entitlement to higher initial ratings for mood disorder and limitation of extension of the left knee associated with postoperative degenerative joint disease, lateral patella subluxation, and chronic osteomyelitis, entitlement to SMP, and entitlement to a certificate of eligibility for specially adapted housing are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. FINDING OF FACT Bipolar disorder with psychosis is aggravated by the Veteran's service-connected mood disorder. CONCLUSION OF LAW The criteria for service connection for bipolar disorder with psychosis are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303 (2013), 3.310 (1999, 2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the claim of service connection for bipolar disorder with psychosis, the claim is substantiated, and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where the veteran served continuously for ninety (90) or more days during a period of war, and if a psychosis became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The evidence does not reflect the presence of a bipolar disorder in service or for many years thereafter. Service connection is not warranted on a direct or presumptive basis. A September 2011 VA examination report includes a diagnosis of bipolar disorder with psychosis. Thus, current bipolar disorder has been demonstrated. The only medical opinion as to whether the current bipolar disorder is related to the now service-connected mood disorder is that of the examiner who conducted the September 2011 VA examination. In April 2012, the examiner re-reviewed the Veteran's claims file and opined that the symptoms of his service-connected mood disorder (including anger and sadness) tended to exacerbate and aggravate his diagnosed bipolar disorder, for which he had been treated for many years. While the examiner who provided the September 2011 opinion did not provide any specific rationale, the examiner nonetheless concluded that based upon examination of the Veteran and a review of his medical records and reported history, his current bipolar disorder was aggravated by his diagnosed mood disorder. There are no medical opinions contrary to that of the September 2011 opinion with respect to whether a relationship exists between the current bipolar disorder and mood disorder. In sum, the preponderance of the evidence reflects that the Veteran has current bipolar disorder and that this disability was aggravated by his service-connected mood disorder. In light of the September 2011 opinion and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for the currently diagnosed bipolar disorder with psychosis have been met. Hence, service connection for that disability is granted. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. ORDER Entitlement to service connection for bipolar disorder with psychosis is granted. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he 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, 311 (2007). In this, case, the Veteran claims that he has current PTSD as a result of various stressors that occurred in service. The stressors reported by the Veteran include being drafted and anticipating deployment to Vietnam, traveling by air from Louisiana to California with his sister who was distraught in anticipation of the Veteran's scheduled deployment to Vietnam, being one of a group of service members who became ill due to carbon monoxide exposure while stationed in West Berlin, and experiencing "red alerts" while stationed in West Berlin due to the possible threats from East Berlin. The Veteran was afforded a VA psychiatric examination in September 2011 and was diagnosed as having PTSD, among other psychiatric disabilities. This examination is inadequate because the examiner did not provide any opinion as to the etiology of the Veteran's PTSD and did not otherwise indicate what stressors supported the diagnosis. An adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, a remand is necessary to afford the Veteran a new VA psychiatric examination to assess the etiology of his current PTSD. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Veteran has reported that he received psychiatric treatment at the VA Medical Center in Chicago, Illinois (VAMC Chicago) and the VA Medical Center in Hines, Illinois (VAMC Hines). There are no treatment records from these facilities in the claims file or among the Veteran's paperless records in the Virtual VA system. Also, the Veteran submitted psychiatric treatment records from the Alexandria VA Health Care System dated from December 2006 to March 2011. A March 2011 VA psychiatry treatment note indicates that he was scheduled for follow up treatment in 3 months. The VA treatment records from the Alexandria VA Health Care System that have been obtained by the AOJ are to September 2006, from February 2008 to March 2010, and from January to April 2013. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Furthermore, in a March 2010 rating decision, the RO denied entitlement to service connection for a right hip disability. Also, in a May 2012 rating decision the RO made the following decisions: granted service connection for mood disorder and assigned an initial 50 percent disability rating, effective November 16, 2010; granted a separate initial 50 percent rating for limitation of extension of the left knee associated with degenerative joint disease, lateral patella subluxation, and chronic osteomyelitis, effective June 11, 2010; reduced the disability ratings for tarsal tunnel syndrome of the left and right foot from 20 percent to 10 percent, effective June 11, 2010; denied entitlement to SMP; and denied entitlement to a certificate of eligibility for specially adapted housing. In February 2011 and August 2012, the Veteran submitted notices of disagreement with respect to these decisions. A statement of the case has not been issued as to these issues. 38 U.S.C.A. § 7105(a) (West 2002). Thus, the Board is required to remand these issues for issuance of the necessary statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall issue a statement of the case as to the following issues: entitlement to an effective date earlier than November 16, 2010 for the grant of service connection for mood disorder; entitlement to an effective date earlier than June 11, 2010 for the grant of a separate initial 50 percent rating for limitation of extension of the left knee associated with postoperative degenerative joint disease, lateral patella subluxation, and chronic osteomyelitis; entitlement to service connection for a right hip disability; whether a reduction in the disability rating for tarsal tunnel syndrome of the left foot from 20 percent to 10 percent was proper; whether a reduction in the disability rating for tarsal tunnel syndrome of the right foot from 20 percent to 10 percent was proper; entitlement to an initial rating higher than 50 percent for mood disorder; entitlement to an initial rating higher than 50 percent for limitation of extension of the left knee associated with postoperative degenerative joint disease, lateral patella subluxation, and chronic osteomyelitis; entitlement to SMP based on the need for regular aid and attendance of another person or on account of being housebound; and entitlement to a certificate of eligibility for specially adapted housing. These issues shall not be certified to the Board unless a sufficient substantive appeal is submitted. 2. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability from VAMC Chicago, VAMC Hines, the Alexandria VA Health Care System dated from September 2006 through February 2008, from March 2010 through January 2013, and since April 2013, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA psychiatric examination with a VA psychiatrist or psychologist to determine the etiology of his current PTSD. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review. For any current PTSD identified (i.e. any PTSD diagnosed since September 1999), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the current PTSD is related to any of the Veteran's reported stressors in service (including being drafted and anticipating deployment to Vietnam, traveling by air from Louisiana to California with his sister who was distraught in anticipation of the Veteran's scheduled deployment to Vietnam, being one of a group of service members who became ill due to carbon monoxide exposure while stationed in West Berlin, and experiencing "red alerts" while stationed in West Berlin due to the possible threats from East Berlin). The examiner shall specifically address whether any claimed stressor(s) regarding fear of hostile military or terrorist activity is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). The examiner must provide reasons for each opinion given. 4. If the benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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). 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs