Citation Nr: 1333600 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-13-644A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a heart disorder, including hypertension, to include as secondary to a psychiatric disorder, including posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to ionizing radiation exposure and/or as secondary to a psychiatric disorder, including PTSD. 3. Entitlement to service connection for a psychiatric disorder, including PTSD. ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from June 1979 to June 1983, with subsequent periods of Reserve service, including active duty for training (ACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2002, the Veteran testified at a Board hearing. A transcript of this hearing is associated with the claims file. The Veterans Law Judge (VLJ) at that hearing has retired from the Board. A veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. 38 C.F.R. § 20.707 (2012). In an April 2008 letter, VA notified the Veteran that he had the option to testify at a hearing in front of another VLJ who would decide his case. The Veteran indicated in a May 2008 response that he did not wish to appear at another hearing before a VLJ. Accordingly, the Board will proceed at this time without scheduling another hearing. Of note, these issues were previously addressed in two separate decisions. They are now addressed within one decision. See BVA Directive 8430, Board of Veterans' Appeals Decision Preparation and Processing: Policies and Responsibility Assignments, ¶ 14(a) (noting that all issues over which the Board has jurisdiction in an individual case shall be addressed in a single document except for certain enumerated exceptions). In September 2011 decisions, the Board denied both claims currently on appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Memorandum Decision remanding the issues on appeal for further assessment. A letter was sent to the Veteran in June 2013 in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. In July 2013, the Veteran responded that he had nothing further to submit and requested that the Board proceed to adjudicate his claims. No records regarding this appeal are located in the Veterans Benefits Management System. A review of the documents located in Virtual VA did not reveal evidence relevant to this remand. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. This appeal has a lengthy procedural history. In a February 2003 decision, the Board denied the claim for entitlement to service connection for a heart disorder, including hypertension. An October 2003 Joint Motion for Remand directed that the Board address whether sufficient notice had been provided to the Veteran. In a March 2004 decision, the Board remanded the issue for additional compliance with VA's duty to notify and for readjudication of the claim. In a November 2004 decision, the Board again denied the heart disorder claim. In a June 2006 Order, the Court remanded the issue, finding that the Board erred in its analysis regarding whether an examination should have been provided to the Veteran. In a July 2008 remand, the Board directed the RO to obtain an etiological opinion regarding the heart disorder claim and to issue a statement of the case regarding the claim for entitlement to service connection for diabetes mellitus, type II. In April 2011, the Veteran submitted a statement alleging that all his medical conditions were inextricably intertwined. Additionally, he submitted titles and citations for medical articles that appear to suggest a relationship between psychiatric disorders and other physical conditions. In September 2011 decisions, the Board denied both claims. The Veteran appealed this decision to the Court, asserting that the Board erred by not finding his claims for entitlement to service connection for a heart disorder, including hypertension, and for diabetes mellitus inextricably intertwined with his claim for entitlement to service connection for a psychiatric disorder. In response, VA argued that a claim for service connection for diabetes mellitus secondary to a psychiatric disorder was not reasonably raised. VA also argued that the Board found that heart disorder was not intertwined with the psychiatric disorder claims and that the Veteran had not shown the finding was clearly erroneous. VA argued that the claims were independent of each other and resolution of one would not have a significant impact on the other. The Court rejected those arguments and issued a Memorandum Decision. The Court found that the Board erred by not addressing whether the psychiatric claim was intertwined with the diabetes claim, implicitly finding that the secondary service connection claim was reasonably raised. The Court also found that the Board erred by not addressing whether the medical evidence indicated that the heart disorder was aggravated by the psychiatric disorder. First, regarding the issue of entitlement to service connection for a psychiatric disorder, to include PTSD, the appeal must be remanded for the issuance of a statement of the case (SOC). When a notice of disagreement (NOD) has been filed, the RO must issue an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (noting that the filing of an NOD initiates the appeal process and requires VA to issue an SOC). In a September 2011 Board decision, the Board noted that the Veteran had raised the issue of entitlement to service connection for a psychiatric disorder, but that the RO had not yet adjudicated that issue. Accordingly, the Board referred the issue. See 38 C.F.R. § 19.9(b) (2012). Apparently, however, the RO had already denied the claim in an August 17, 2011 rating decision; that rating decision was not yet of record. In an August 25, 2011 statement, the Veteran stated that he wanted the Board to make a decision on all the appeals and rating decisions since August 17, 2011. The Board finds that this statement expresses disagreement with the August 2011 rating decision and a desire to appeal; the statement is thus an NOD. See 38 C.F.R. § 20.201 (2012). Accordingly, remand of this issue is required for issuance of an SOC. Second, regarding the issue of entitlement to service connection for a heart disorder, including hypertension, remand is required for readjudication, and a possible addendum opinion. Issues are inextricably intertwined when they are so closely tied together that a final decision concerning one or more of the claims cannot be rendered until a decision on another. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Where the facts underlying separate claims are intimately connected, the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together. Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). Here, in an April 2011 submission, the Veteran asserted that all his medical conditions were intertwined and requested that the Board address all conditions which might be caused or aggravated by service-connected conditions, including his not yet service-connected psychiatric disorder. In the September 2011 Board decision, the Board found that the heart disorder, claim including hypertension, and the psychiatric disorder claim were not intertwined. That finding was based, in part, on the fact that the psychiatric disorder claim had not yet been adjudicated and thus was not within the Board's jurisdiction. As noted above, an NOD has been filed regarding the denial of service connection for a psychiatric disorder thus potentially placing this issue within the Board's jurisdiction. Although the evidence of record does not indicate that the issues are currently inextricably intertwined, based on the Memorandum Decision's rejection of VA's arguments on appeal, the Board finds that remand for readjudication is necessary because the issue of service connection for a psychiatric disorder is remanded herein. Additionally, if service connection for a psychiatric disorder is granted on remand, an addendum etiological opinion must be obtained as the Veteran has submitted titles of medical articles that suggest a relationship between a psychiatric disorder and physical disorders. Third, the issue of entitlement to service connection for diabetes mellitus, type II, must be remanded for readjudication, and a possible addendum opinion. VA must review a claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised issues. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board required to consider all issues raised by the claimant or by the evidence of record). Issues are inextricably intertwined when they are so closely tied together that a final decision concerning one or more of the claims cannot be rendered until a decision on another. Harris, 1 Vet. App. at 183. Where the facts underlying separate claims are intimately connected, the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together. Smith, 236 F.3d at 1373. Based on the Court's implicit finding that there a claim for entitlement to service connection for diabetes mellitus, type II, secondary to a psychiatric disorder, was reasonably raised, the Veteran filing an NOD regarding the denial of service connection for a psychiatric disorder, and the Memorandum Decision, the Board finds that remand is warranted. Although the evidence of record does not indicate that the issues are currently inextricably intertwined, based on the Memorandum Decision's rejection of VA's arguments on appeal, the Board finds that remand for readjudication is necessary as the issue of entitlement to service connection for a psychiatric disorder is remanded herein. Additionally, if the issue is granted on remand, an addendum etiological opinion must be obtained as the Veteran has submitted titles of medical articles that suggest a relationship between a psychiatric disorder and physical disorders. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. 2. Issue an SOC addressing the claim for entitlement to service connection for a psychiatric disorder. This issue should not be certified to the Board unless a sufficient substantive appeal is submitted. 3. Only if the claim for service connection for a psychiatric disorder is granted, obtain addendum medical opinions. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner or examiners must provide the following opinions: 1) is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension or any diagnosed heart disorder was caused or aggravated by a psychiatric disorder; and 2) is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II, was caused or aggravated by a psychiatric disorder. It is requested that the examiner review and cite to relevant medical literature when providing the above-requested opinions. A review of the medical literature noted in the Veteran's April 2011 submission would be helpful, but not necessary, if the examiner finds other literature more relevant. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. 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 claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ CHERYL MASON 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).