Citation Nr: 1333475 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-13 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected mitral valve prolapse, angina pectoris, anterior wall hypokinesis and spastic left coronary artery. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June to October 1999, March 2001 to March 2004, and April to September 2005. He also had periods of active/inactive duty for training purposes (ACDUTRA/INACDUTRA) in the Army Reserve and National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In that decision, the RO granted service connection for mitral valve prolapse, angina pectoris, anterior wall hypokinesis and spastic left coronary artery, and assigned a noncompensable evaluation, effective October 10, 2008. The RO denied the Veteran's claims for service connection for PTSD, anxiety disorder, and major depressive disorder. Although the Veteran's claims for service connection for PTSD, anxiety disorder, and depressive disorder were originally characterized as such, the Veteran has also been diagnosed with narcissistic personality disorder, adjustment disorder with depression and anxiety, and insomnia. To adequately reflect the claims, the issues have been amended accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 The Board finds that additional development is necessary prior to final adjudication of the claims remaining on appeal. I. Initial compensable evaluation for service-connected heart disabilities The provisions of 38 U.S.C.A. § 7105(a) provide that an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In December 2008, the RO granted service connection for mitral valve prolapse, angina pectoris, anterior wall hypokinesis and spastic left coronary artery and a noncompensable rating was assigned, effective October 10, 2008. In the Veteran's June 2009 notice of disagreement, he indicated that the noncompensable evaluation was less than expected for his service-connected heart disabilities. In a September 2009 letter, the RO indicated that it had received a written notice of disagreement with the December 2008 rating decision. While the Veteran expressed disagreement with the noncompensable evaluation assigned for his service-connected heart disabilities in the December 2008 rating decision, a subsequent statement of the case (SOC) was never issued as to the claim for an initial compensable rating for his service-connected heart disabilities. Pursuant to Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issue of entitlement to an initial compensable rating for service-connected mitral valve prolapse, angina pectoris, anterior wall hypokinesis and spastic left coronary artery remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. It is noteworthy that this claim is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal following the issuance of the SOC. The Board's actions regarding this issue are taken to fulfill the requirements of the Court in Manlincon. II. Service connection for PTSD and an acquired psychiatric disorder other than PTSD As previously stated, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD include claims for service connection for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran essentially contends that his claimed psychiatric disabilities, to include PTSD, had onset during, or are otherwise related to his military service. With respect to the Veteran's service in the ANG/Reserves, the Board notes that generally, "[i]n order to qualify for VA benefits, a claimant . . . [must be] a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed.Cir.2000). A "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 2002). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). With respect to members of the ANG/Reserves, a period of ACDUTRA is defined as full-time duty under section 316, 502, 503, 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22)(c) (West 2002). A period of INACDUTRA for members of the ANG of any state "means duty (other than full-time duty) under sections 316, 502, 503, 505 of title 32 . . ., or the prior corresponding provisions of law." 38 U.S.C.A. § 101(23)(c) (West 2002). Basically, these refer to the two weeks of annual training and to the drills that each Reservist or National Guardsman must perform each year. At the outset, the Board notes that the Veteran's service treatment and personnel records are incomplete. Service personnel records currently of record suggest that he served in the Indiana/U.S. Army National Guard (ANG) and as a member of the Army Reserves from February 1998 to March 2001; in the active duty Reserves from March 2001 to February 2005; and in the Army National Guard/Reserves from February 2005 with a military service obligation termination date of February 23, 2012. The Veteran's service treatment records, to include reports of enlistment and separation examinations pertaining to his service in the Army National Guard from February 1998 to March 2001 are not available for review. His DD Form 214 pertaining to active duty training from June to October 1999 shows he was assigned to Co. C, 369 Sig. Bn., 15 Sig. Bde. TR TC during active duty training and he was transferred to HHD 38th MSB in Terre Haute, Indiana on discharge. These records are relevant to the claims for service connection for psychiatric disability and are of increased significance in light of post-service VA psychiatric treatment records and diagnostic testing for PTSD, which show a significant history of pre-service emotional trauma. Thus, efforts must be made to obtain the Veteran's service treatment records and examination reports pertaining to his National Guard/Reserve service dating from February 1998 to March 2001. In addition, service treatment records pertaining to the Veteran's reserve service dating from his discharge from active service in March 2004 to February 2005, during which time he was assigned to USAR Control Group and HHB 1/3 ADA, are not available for review. In this regard, the claims file does contain limited records from Winn Army Community Hospital at Ft. Stewart, Georgia, dating during this period, which show diagnostic assessments, to include an August 2003 diagnosis of adjustment reaction not otherwise specified, treated with group psychotherapy. There are no medical or psychiatric clinical treatment records from Winn Army Community Hospital associated with the claims file, nor is there any indication that such records have been requested for review. As these records are relevant to the claims on appeal, additional development efforts are necessary to obtain them for review. Finally, the Veteran's service personnel and treatment records pertaining to his service in the Army National Guard/Reserves dating since February 2005 were obtained during the pendency of the claims on appeal and are incomplete. Service personnel records currently associated with the claims file date only through September 2007. Service treatment records date only through January 2008. Since September 2005, it appears that the Veteran's Army National Guard/Reserve units of assignment included HHD 38th Support Battalion in Terre Haute, Indiana from September 29, 2005 to September 1, 2007, and Co. C 638th Support Battalion (AVN) in Anderson, Indiana since September 1, 2007. As the Veteran's complete service personnel and treatment records are relevant to the claims on appeal, additional development efforts must be made to obtain them. The Veteran's service treatment records and examination reports currently available for review do, however, show complaints of fatigue and a change in sleep patterns in June 2001. He admittedly was experiencing some increased stress since entering military active duty status. Diagnostic assessment was "? fatigue secondary to stress." Echocardiogram showed marked sinus arrhythmia. He was referred to the mental health department for education pertaining to stress management and sleep hygiene. A July 2002 service treatment record shows complaints of vomiting five times in one morning and increased stress and worry. The Veteran admitted to experiencing increased stress secondary to work and the death of a close friend one month prior. It was noted that he had been seen by the mental health department. He slept well without complaint of insomnia. EKG was abnormal with marked sinus bradycardia and marked sinus arrhythmia. Diagnostic assessment was psychogenic vomiting. He was placed on a limited physical profile for his heart murmur pending further testing. Following a pre deployment health assessment in January 2003, the Veteran was found medically qualified for deployment to southeast and southwest Asia. An August 2003 post-deployment health assessment shows complaints of weakness, headache, tiredness after sleeping, and difficulty remembering, which the Veteran indicated had developed during deployment, however, he denied ever seeking treatment on sick call during deployment. He indicated that he saw enemy soldiers dead, wounded, or killed, however, he denied engagement in direct combat with discharge of his weapon. During deployment, he felt that he was in greater dander of being killed. He indicated that he had experienced something so frightening, horrible, or upsetting that in the month prior he tried hard not to think about it or went out of his way to avoid situations that reminded him of it. He further indicated that in the last month he was constantly on guard, watchful, or easily startled. A June 2006 ANG retention examination, however, shows that the Veteran denied any history of symptoms of nervous trouble of any sort (anxiety or panic attacks), frequent trouble sleeping, depression or excessive worry, or history of evaluation or treatment for a mental condition. He was found to be psychiatrically normal on clinical evaluation. In October 2007, it was noted that the Veteran felt more fatigued recently. Findings on a nuclear imaging study of the heart were suggestive of fibrosis of uncertain cause. It was noted that scarring can be caused by viral infection, exposure to toxic material, or sometimes by stress related myocardial fibrosis. Post-service VA treatment records dating since July 2008 show diagnoses of anxiety disorder not otherwise specified, major depressive disorder, adjustment disorder with mixed anxiety and depressed mood and insomnia. They also show a significant history of childhood traumas. In March 2009, following a review of psychiatric testing, a psychiatrist diagnosed PTSD and narcissistic personality disorder, however, such diagnoses were to be regarded as preliminary and in need of clinical confirmation. In June 2009, the Veteran complained of being overlooked for promotions during service. In July 2009, he reported an overall sense of guilt for leaving Iraq and not seeing the war through and survivors guilt. A December 2009 psychiatric treatment plan shows presenting problems of depression, anxiety, and possibly PTSD. The listed precipitating event was the Veteran's change in military role on return from Iraq and his change from active duty to reserve status. It was noted that the Veteran reported combat experiences in Iraq and symptoms of PTSD. A February 2010 VA treatment note shows that Veteran's report that his security clearance had been pulled as the military felt that he had lied about or withheld information during his security clearance investigation. Specifically, the Veteran stated that he was cleared of one unspecified problem and the other issue pertained to rape charges related to his deployment, which he expected to be cleared of within the month. On a VA heart examination in December 2008, symptoms of lack of stamina and fatigue were associated with the Veteran's service-connected heart disabilities. The evidence above suggests that the Veteran may have a currently acquired psychiatric disability, to include PTSD, that was incurred in, aggravated by, or is otherwise related to his active military service and ACDUTRA or his service-connected heart disabilities. To date, however, the Veteran has not been afforded a VA psychiatric examination to determine the nature and etiology of his currently diagnosed psychiatric disorders. Thus, the Veteran should be afforded a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006) (setting forth a low standard for the provision of a VA examination). Finally, the Board notes that in the Veteran's October 2008 claim for service connection, he indicated that he had received treatment for anxiety and depression from Dr. RG since 2007. An October 2007 service treatment record from Dr. PAA, M.D., and an October 2008 VA treatment note, show that the Veteran had been prescribed medication for treatment of his anxiety and depression by Dr. RG, his private primary care physician. There is no indication that records have been requested or obtained from Dr. RG. As these records are relevant to the claims, efforts must be made to obtain them. Ongoing VA medical and psychiatric treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), the Veteran's National Guard and Reserve units of assignment (see above), and any other records repository deemed necessary and request the Veteran's complete service personnel records, to specifically include all performance evaluations dating since 1998, verification of all periods of ACDUTRA/INACDUTRA service, and all ongoing service personnel records and physical examination/Medical Evaluation Board reports dating since 2008. Also request verification of the Veteran's claimed deployments to Kuwait in 2002 while assigned to the 1st Bn., 3rd Air Defense Artillery, 3rd Infantry Division Mechanized as alleged in his June 2009 notice of disagreement and in Iraq and Kuwait in 2003 as alleged in his August 2003 post-deployment health assessment. Also request from all appropriate records repositories, to include the Records Management Center (RMC) and the Veteran's ANG/Reserve units, his complete medical and psychiatric service treatment records and reports of enlistment/separation examinations pertaining to his service in the Army National Guard/Reserves dating from February 1, 1998 to April 1, 2001; 2003 to February 2005, to specifically include records of any individual and group counseling received since August 2003 at Winn Army Hospital at Fort Stewart as alluded to in a Department of Defense list of diagnostic assessments from that facility; and since February 2005. All attempts to obtain such records and verify the Veteran's service in Kuwait in 2002 and Iraq and Kuwait in 2003 should be clearly documented in the claims file. 2. Once the Veteran's complete service personnel records have been obtained, the RO/AMC must create a memorandum for the record for review by the VA examiner who performs the examination requested herein that identifies the specific dates of all verified periods of active service and ACDUTRA/INACDUTRA. 3. The RO/AMC must request from all appropriate records repositories, to include JSRRC, all records and geographic locations of service for the Veteran's units of assignment (1st Bn., 3rd ADA, 3rd Mech. Inf. Div.) in 2002 and 2003 when he was allegedly stationed in Kuwait and saw combat and/or dead or killed enemy soldiers. All pertinent follow-up must be undertaken and all attempts to corroborate the claimed stressor(s) should be clearly documented in the claims file. 4. Thereafter, the RO/AMC must make a determination for the record for review by the VA examiner who performs the examination requested herein as to whether any alleged stressor has been verified. 5. The RO must contact the Veteran and request that he provide the names and addresses of all medical care providers who have treated him for an acquired psychiatric disorder, to include PTSD, since 2003, to treatment received from his private primary care physician, Dr. RG, M.D. at Bariatric Center who prescribed him medication for anxiety/depression dating since 2007 as alluded to in the Veteran's October 2008 claim for service connection, an October 2007 letter from Dr. PAA, M.D., and an October 14, 2008 VA treatment note. After securing the necessary release, if any, the RO/AMC should obtain any records which are not already in the claims file. Also obtain VA medical and psychiatric clinical treatment records from the Indianapolis VAMC dating from October 2008 to January 2009, and since March 2010. If the RO/AMC cannot locate the requested records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran and his representative must then be given an opportunity to respond. 6. Thereafter, schedule the Veteran for a VA mental disorders examination to determine the nature, onset, and etiology of all acquired psychiatric disorders diagnosed since October 2008, to include anxiety disorder, major depressive disorder, narcissistic personality disorder, insomnia, adjustment disorder, depression, and PTSD. All indicated tests must be accomplished. The claims folder, to include any relevant records in Virtual VA, and a copy of this REMAND must be made available to the examiner. The examiner must acknowledge that this review was completed. For each diagnosed psychiatric disorder the examiner must address whether it is at least as likely as not (50 percent probability) that the disorder was incurred in, aggravated (permanently worsened beyond normal progression) by, or is otherwise related to any period of active service and any verified period of ACDUTRA, or aggravated service-connected mitral valve prolapse, angina pectoris, anterior wall hypokinesis and spastic left coronary artery disabilities. In the case of aggravation, to the extent practicable, the examiner should indicate a baseline of symptomatology for the Veteran's psychiatric disorder, and the aggravation of such symptomatology by her service-connected heart disabilities. The examiner must provide a complete written rationale for any opinion offered. In so doing the examiner must: (a) Explain the basis for each diagnosis offered, and how that diagnosis is justified under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). (b) If the criteria for a diagnosis of PTSD have been satisfied, the examiner must comment upon the presence or absence of any link between that diagnosis and any verified in-service stressor. (The Veteran's August 2003 post-deployment health assessment indicates that he saw enemy soldiers that were dead, wounded, or killed and a December 2009 psychiatric treatment plan shows that the Veteran reported combat experience during service in Iraq and Kuwait, but as of the date of this remand, no stressor has been independently verified, or shown to be consistent with the time, place and circumstances of his service. That finding may change depending on the results from development outlined above.) In so doing, the examiner shall specifically address if the Veteran's claimed stressor relates to his fear of in-service hostile military or terrorist activity. (c) The examiner must consider the lay statements of the Veteran. 7. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination reports are deficient in any manner, the RO/AMC must implement corrective procedures at once. 8. The RO/AMC should issue a statement of the case to the Veteran addressing the matter of entitlement to an initial compensable rating for service-connected mitral valve prolapse, angina pectoris, anterior wall hypokinesis and spastic left coronary artery, including citation to all relevant law and regulation pertinent to this claim. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. 9. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. 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). _________________________________________________ MICHAEL LANE 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).