Citation Nr: 1330934 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-09 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for attention deficit hyperactivity disorder (ADHD), to include as secondary to service-connected posttraumatic stress disorder (PTSD) with bipolar disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to November 1979. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim currently on appeal. The Veteran was scheduled to appear at the Waco RO to have a hearing before a Veterans Law Judge. The Veteran failed to report for the hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that in a November 2011 rating decision, the RO granted the Veteran's claims of entitlement to service connection for PTSD and bipolar disorder. In view of the foregoing, these issues have been resolved and are no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the current medical evidence of record is unclear as to whether the Veteran currently suffers from ADHD. In this regard, VA mental health evaluations dated August and September 2011 from S.A., LCSW, ACSW document a diagnosis of ADHD, not otherwise specified (NOS). Additionally, a VA treatment record dated April 2011 from C.K., M.D., a VA physician, notes a diagnosis of ADHD followed by mental health. However, the remainder of the medical evidence of record, which includes multiple mental health examinations, are absent a diagnosis of ADHD. Moreover, VA mental health examinations dated October 2006, January 2011, April 2011, and February 2012 are absent a diagnosis of ADHD. The Board notes, however, that none of the VA examiners specifically indicated that the Veteran does not suffer from ADHD. The Board observes that the Veteran's service treatment records are absent complaints of or treatment for ADHD specifically. However, the Veteran has contended that his ADHD is related to an in-service sexual assault during service aboard the USS Constellation in late 1979. See, e.g., a statement from the Veteran dated March 2008. Pertinently, this incident was conceded as an in-service stressor when the Veteran was awarded service connection for PTSD. As such, evidence of an in-service injury has been satisfied. Furthermore, the Veteran contends that his current ADHD is related to his military service, specifically his in-service assault. He has further contended that he has continued to experience symptoms associated with his ADHD since then. On this evidence, the Board finds that there is arguably evidence of a current disability, an in-service injury, and evidence that the two may be connected. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's claimed ADHD and his service is warranted. The Board also notes that service connection is in effect for PTSD with bipolar disorder. The medical evidence of record indicates that the Veteran's PTSD symptomatology includes problems with concentration. See the January 2011 VA examination report. In light of the foregoing, the Board finds that a medical opinion as to a relationship between the Veteran's claimed ADHD and his service-connected PTSD with bipolar disorder must also be obtained to clarify this issue. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. VA treatment records must also be obtained. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 2. After the above development is completed, to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed ADHD. The claims file, and any pertinent records contained in the Virtual VA eFolder, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and the mental health examination, the examiner is asked to render an opinion as to the following: a. Whether the Veteran currently suffers from ADHD. If the examiner determines that the Veteran does not currently suffer from ADHD, he/she should reconcile their opinion with the August and September 2011 VA mental health evaluations by S.A., LCSW, ACSW which document a diagnosis of ADHD, NOS. b. If the examiner determines that the Veteran currently suffers from ADHD, provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's ADHD is related to his active military service, to include his confirmed report of in-service sexual assault aboard the USS Constellation. c. Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's ADHD is either (1) caused or (2) aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected PTSD with bipolar disorder. If the examiner finds that the ADHD is aggravated by the service-connected PTSD with bipolar disorder, then he/she should quantify the degree of aggravation, if possible. The examiner is asked to provide the underlying reasons for any opinion expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). _________________________________________________ Bethany L. Buck 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).