Citation Nr: 1338900 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-21 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed emotional features. WITNESSES AT HEARING ON APPEAL The Veteran and his wife, A.D. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from June 2002 to August 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. A hearing before the undersigned Veterans Law Judge was held at the RO in March 2012. A transcript of the hearing has been associated with the claims file. 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 on his part. REMAND Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran testified at the March 2012 Board hearing that his acquired psychiatric disorders are secondary to his service-connected disabilities, namely as a result of his Hodgkin's lymphoma. He stated he is physically weak, fluctuates in weight, and does not want to get out of bed or be around people. The Veteran stated that prior to service he was well-adjusted and did not have problems while attending high school. He also testified that he was assaulted by a master sergeant and bullied by a corporal during service. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran is currently service connected for the following: right great toe bunionectomy at a 10 percent disability rating, effective September 1, 2008; left knee chondromalacia patella, claimed as a left knee condition, at a 10 percent disability rating, effective May 19, 2010; arthritis of the right shoulder with decompression surgery and excision of the distal clavicle, at a 10 percent disability rating, effective June 23, 2011; Hodgkin's lymphoma at a noncompensable disability rating, effective September 1, 2009; scar, status post right shoulder with decompression surgery and excision of the distal clavicle (previously combined with the evaluation of arthritis of the right shoulder) at a noncompensable disability rating, effective September 1, 2008; and erectile dysfunction at a noncompensable disability rating, effective May 19, 2010. According to the in-service treatment records, it is notable that in February 2003, the Veteran was diagnosed with adjustment disorder with anxiety and depressed mood. Chronic partner relationship problems were noted. Narcissistic and borderline traits were also noted. However, it was determined the Veteran was psychologically fit for full duty and responsible for actions. He was treated again in August 2003. In April 2005, the Veteran was treated for, and diagnosed with, major depressive disorder, obsessive compulsive disorder, and narcissistic personality disorder. The Veteran was afforded a VA examination in January 2009 where the VA examiner was asked to determine whether it was at least as likely as not the Veteran's difficulties with anxiety and depression were secondary to his service-connected Hodgkin's lymphoma. The examiner noted that the service records were unavailable but that the Veteran provided records at the examination. The examiner determined the records indicated that the Veteran had problems with personality functioning prior to entering the military. The Veteran stated he always had difficulties with obsessive-compulsive problems and with his anger and temper. The Veteran felt he was mistreated during boot camp. The examiner noted the Veteran was diagnosed with personality disorder in 2003, prior to his diagnosis for Hodgkin's lymphoma (which was diagnosed in 2005). Significantly, the examiner stated the Veteran denied his ongoing depression and anxiety were associated with his cancer. The Veteran was diagnosed with moderately intense adjustment disorder with mixed emotional features, secondary to multiple life issues and stressors (secondary to multiple issues and stressors (secondary to character pathology); and mixed personality disorder which was very severe with borderline and narcissistic aspects. The examiner determined there was no basis for a diagnosis for PTSD based on his experiences in boot camp. The examiner concluded that the Veteran "denie[d] any specific difficulties or concerns concerning his Hodgkin's disease which is currently in full remission. A review of the case in general and this issue specifically leads this examiner to the very strong opinion that there is no evidence that this [Veteran] has any type of psychiatric difficulties secondary to a diagnosis of Hodgkin's disease." In November 2009, the examiner confirmed his opinion after reviewing the Veteran's claims file. The Board notes the lay statements and testimony that the Veteran's acquired psychiatric disorder(s) is(are) secondary to his service-connected disabilities and/or related to military service. Service connection has been established for additional disabilities since a medical opinion was received regarding secondary service connection. As such, further development is required to obtain a medical opinion as to whether the Veteran's current acquired psychiatric disorder(s) is(are) related to his active military service or secondary to service-connected disability, to include consideration of the Veteran's lay statements. Finally, the record suggests that there may be outstanding medical records. The most recent VA medical treatment record within the claims file (located on Virtual VA) is dated March 2012. Therefore, all outstanding VA treatment records should be requested and obtained if available. 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). Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment, namely VA treatment records since March 2012. In addition, obtain all private treatment records which have not been obtained already. The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions. 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. The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. After the above action is completed, schedule the Veteran for a VA examination before an appropriate specialist, if possible, who has not previously examined the Veteran, for the purpose of determining whether the Veteran's acquired psychiatric disorder, to include adjustment disorder with mixed emotional features, is of service onset or otherwise related thereto or is due to service-connected disabilities or is aggravated by the service-connected disabilities. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA) must be made available to the examiner designated to examine the Veteran and the examination report should reflect that such a review was made. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should express an opinion as to whether it is at least as likely as not that any acquired psychiatric disorder, to include adjustment disorder with mixed emotional features, that is currently present or has been at any time since the claim for service connection was filed in November 2008: (a.) Was incurred in service or is otherwise related thereto; (b.) Is proximately due to or the result of service-connected disability or disabilities; or (c.) Is aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected disability or disabilities. Please explain the reasons for your opinion. The Veteran has been service connected for a right great toe bunionectomy; left knee chondromalacia patella, claimed as a left knee condition; small airway disease with decreased lung capacity; arthritis of the right shoulder with decompression surgery and excision of the distal clavicle; Hodgkin's lymphoma; scar, status post right shoulder with decompression surgery and excision of the distal clavicle (previously combined with the evaluation of arthritis of the right shoulder); hemorrhoids; and erectile dysfunction. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. The examiner should consider and discuss the relevant in-service and post-service treatment records, namely the findings of the January 2009 VA mental disorder examination, November 2009 addendum opinion, and December 2010 opinion and the Veteran's contentions and lay history. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. 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). 4. After completing the above actions, 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 must be readjudicated. If the claim is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran, an adequate opportunity to respond must be provided, and the appeal must thereafter be returned to the Board for further appellate review. The appellant 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). _________________________________________________ BARBARA B. COPELAND 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).