Citation Nr: 1342291 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 07-39 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection an acquired psychiatric disorder, to include depression, anxiety disorder, and/or post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a chronic respiratory disability, to include pulmonary emphysema and/or chronic obstructive pulmonary disease (COPD), and include as secondary to a psychiatric disorder. 3. Entitlement to service connection for residuals of a low back disability, to include as secondary to a psychiatric disorder. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for residuals of a cerebral concussion or traumatic brain injury (TBI). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In a November 2011 decision, the Board reopened the issues of entitlement to service connection for pulmonary emphysema, residuals of a cerebral concussion, sinusitis, low back disability, and acquired psychiatric disability and remanded them for an additional VA examination. VA examinations were conducted in January 2012. The issues of entitlement to service connection for sleep apnea and an increased rating for gasteroenteritis have been raised by the record, but 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 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 Veteran claims service connection for a sinus disorder incurred during active service. Service treatment records include diagnoses of chronic sinusitis in November 1979, chronic postnasal drip in March 1980, and rhinitis in July 1977. Post-service complaints of rhinitis and allergic rhinitis are dated in May 2003. The Veteran underwent a VA examination in January 2012. While noting symptoms of nasal congestion and excess mucus, the examiner determined that there was no current diagnosis. The Board observes that the Veteran's current symptoms of nasal congestion and excess mucus appear to be the same symptoms upon which his in-service diagnoses of sinusitis and rhinitis were rendered. Considering there are objective findings suggestive of a current sinus disorder, the Board requests an additional opinion clarifying the assessment of no current sinus diagnosis. The Veteran also underwent a January 2012 VA examination which included a diagnosis of PTSD with a primary stressor of a pre-service sexual assault. The examiner noted that she also had a diagnosis of dysthymia secondary to her personality traits. However, the examiner did not give an opinion as to whether the Veteran's PTSD manifested prior to service, and, if so, whether it was aggravated by her active service. The Board notes that upon enlistment examination, the Veteran denied "nervous trouble of any sort." In an August 1976 medical history report, the Veteran reported nervous trouble, the examiner noted nervous trouble due to job situation. In a January 1979 STR, the Veteran reported "nerves" and having problems at her job. She reported tension affecting her work. However, upon separation examination in April 1980, the Veteran denied "nervous trouble of any sort." Post-service VA and private treatment records include multiple diagnoses including PTSD, bi-polar disorder, personality disorder, and depression. The Board finds an additional VA opinion concerning service connection under a theory of aggravation is warranted. The Veteran contends that she has back and respiratory disorders to include secondary to her acquired psychiatric disorder. These claims are inextricably intertwined with the Veteran's pending claim for service connection for acquired psychiatric disorder as the resolution of that claim might have bearing upon the claims claimed as secondary to acquired psychiatric disorder. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran asserts she has cognitive deficits due to an in-service concussion. The January 2012 VA examiner determined that the concussion in service was likely mild and did not have any chronic affects. Likewise, during a May 2009 VA polytrauma support clinic evaluation, the psychiatrist found it is not likely that her current presentation is significantly influenced by a traumatic brain injury decades ago other than that a history of TBI may predispose toward developing dementia later in life. However, an August 2008 treatment record with subsequent addendum, indicates that a physician suspected that the Veteran had pseudodementia since the Veteran's symptoms have been present since 1977. This opinion suggests that the Veteran's disability has been persistent since her in-service concussion. The Board finds further an additional VA examination by a neurologist is necessary as to whether the Veteran has a current brain disorder related to or caused by an in-service concussion. The Board notes that the May 2009 VA treating psychiatrist indicated that her presentation appears generally stable since last evaluation, though she complained of decreasing concentration and less pleasure in activities. This may indicate some worsening of her depression, but may signal early cognitive changes. As the claims are being remanded for additional opinions, the VA examiners should specifically address whether the Veteran has a current brain disorder or whether her symptoms are related to her claimed acquired psychiatric disorder. Finally, as the case is being remanded, the AMC should attempt to identify and obtain any outstanding VA and/or private treatment records relating to the Veteran's claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO should furnish to the Veteran and her representative a letter requesting that the Veteran identify any additional evidence pertinent to the claims on appeal that is not currently of record. In particular, the Veteran should be asked to identify any sources of treatment since October 2012. The RO should specifically request that the Veteran provide, or sign appropriate authorization for the RO to obtain, any outstanding private medical records. The RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. 2. The AMC should return the claims file to the VA examiner who conducted the January 2012 VA sinus examination for a clarifying opinion. Her claims files must again be reviewed by the examiner in conjunction with the opinion. If the January 2012 examiner is unavailable, the claims file should be forwarded to an appropriate examiner for the requested opinion. Based on review of the pertinent medical history, and with consideration of sound medical principles, the examiner(s) should provide a rationale for the opinion that the Veteran has no current sinus disorder considering the objective findings during the January 2012 VA examination of nasal congestion and excess mucus and a history of rhinitis. 3. The AMC should return the claims file to the VA examiner who conducted the January 2012 VA PTSD examination for a clarifying opinion. Her claims files must again be reviewed by the examiner in conjunction with the opinion. The claims folders must be made available to and reviewed by the examiner. Based on review of the files and examination of the Veteran, the examiner should state a medical opinion with respect to the Veteran's PTSD as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that such disorder was incurred prior to active service and was aggravated by active service. If the January 2012 examiner is unavailable, the claims file should be forwarded to an appropriate examiner for the requested opinion. 4. If service connection for an acquired psychiatric disorder is established, the AMC should attempt to obtain additional opinions as to whether the Veteran's back and respiratory disorders are caused or worsened by her psychiatric disorder. 5. The Veteran should be afforded an examination by a VA neurologist. The claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed. Based on review of the files and examination of the Veteran, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) there are any identifiable residuals of cerebral concussion present during the period of this claim that were either caused, in whole or in part, by or aggravated by the documented in-service cerebral concussion. The examiner is asked to specifically address the comments made by the May 2009 VA provider. 6. The RO or the AMC should then re-adjudicate the claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and her representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. 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. 2013). _________________________________________________ DAVID L. WIGHT 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) (2013).