Citation Nr: 1416898 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 10-20 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Prior to August 1, 2009, entitlement to an evaluation in excess of 30 percent for onychomycosis of the left foot. 3. Prior to August 1, 2009, entitlement to an evaluation in excess of 30 percent for onychomycosis of the right foot with callus hallux. 4. On and after August 1, 2009, entitlement to a compensable evaluation for onychomycosis of the left foot and onychomycosis of the right foot with callus hallux, to include the propriety of the reduction. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from January 1968 to January 1971, with service in Vietnam from June 1968 to June 1969. He is in receipt of the Vietnam Campaign Medal and the Vietnam Service Medal, among others. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and an August 2008 rating decision of the VA RO in Columbia, South Carolina. Jurisdiction over the Veteran's claims was subsequently transferred to the VA RO in Louisville, Kentucky. As the Veteran's petition to reopen a claim for entitlement to service connection for PTSD is reopened herein, it is combined with a claim for any psychiatric disorder. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the evidence suggesting various diagnoses, the claim has been recharacterized to include any psychiatric disorder, upon reopening. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional evidence pertinent to the claims on appeal. The Veteran requested a hearing before the Board in his May 2010 substantive appeal. The Veteran then withdrew his request for a hearing in a September 2013 letter to the RO. Thus, there is no outstanding hearing request. 38 C.F.R. § 20.704(e) (2013). The issues of entitlement to an increased evaluation for the residuals of lung cancer and entitlement to service connection for jungle rot 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 issue of entitlement to an increased rating for bilateral onychomycosis, to include the propriety of the reduction, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an August 2004 rating decision, the RO denied the Veteran's claim of service connection for PTSD on the basis that VA could not confirm the Veteran's claimed stressor; the Veteran did not appeal this decision or submit new and material evidence within one year. 2. The Veteran has since submitted additional evidence regarding his stressor and changes in personality after he returned from Vietnam. 3. The evidence received subsequent to the August 2004 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD. 4. The Veteran has submitted competent and credible lay evidence that his service in Vietnam included conducting perimeter sweeps as a dog handler to look for wounded people after ground attacks. 5. The Veteran's service personnel records demonstrate that he served in Vietnam from June 1968 to June 1969 and his military occupational specialty was a military policeman. 6. A February 2007 VA examiner diagnosed chronic PTSD and related it to active service, to include the Veteran's claimed perimeter sweeps. 7. An October 2011 VA examiner found diagnosed an anxiety disorder and an adjustment disorder with depressed mood; the examiner found that PTSD was not present. This examiner opined that the anxiety disorder was caused by active service, including the perimeter sweeps, and that the adjustment disorder with depressed mood was caused by his service-connected lung cancer. 8. Resolving all reasonable doubt in favor of the Veteran, the Veteran's PTSD is related to service. 9. The preponderance of the evidence demonstrates that the anxiety disorder and adjustment disorder with depressed mood are caused by active service. CONCLUSIONS OF LAW 1. The August 2004 rating decision that denied service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001). 2. Evidence received since the August 2004 rating decision is new and material and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The Veteran's PTSD, anxiety disorder, and adjustment disorder with depressed mood, are caused by his period of active military service. 38 U.S.C.A. §§ 1110, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). ORDER New and material evidence having been received, the claim of entitlement to service connection for PTSD, is reopened. Entitlement to service connection for an anxiety disorder, adjustment disorder with depression, and PTSD, is granted. REMAND Remand is required because it is unclear from the Veteran's VA examinations what symptoms are attributable to his onychomycosis and which are attributable to his nonservice-connected foot disabilities. Remand is also required because the Veteran's most recent examination was in May 2010, and he stated that his disability is getting worse as he gets older. 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. Required notice must be provided to the Veteran and his or her representative. 2. Thereafter, schedule the Veteran for an appropriate medical examination to determine the nature and extent of any current manifestations of his service-connected onychomycosis. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand should be made available for review in connection with the examination, if possible. The examiner should indicate in the report that the claims file was reviewed. The examiner must distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected onychomycosis and any other nonservice-connected foot disorders that may be found. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should state this in the examination report. The examiner must also describe the percentage of the affected area and entire body covered by onychomycosis and whether the Veteran uses intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, as well as the duration of those medications over a 12-month period. The examiner must provide a comprehensive report including complete explanations for all conclusions reached. 3. After completing the above action, conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraph. 4. After development is completed, the case should be reviewed on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2013). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs