Citation Nr: 1419135 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 13-03 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include PTSD and depression. 2. Entitlement to service connection for residuals of uterine cancer, to include a hysterectomy. 3. Entitlement to service connection for intervertebral disc syndrome of the neck and back. 4. Entitlement to service connection for arthritis of the upper and lower extremities. 5. Entitlement to a total rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and C.B. ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. The issue of entitlement to service connection for hypertension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In April 2013, the Veteran and her sister presented testimony at a personal hearing before the undersigned Veterans Law Judge. The Veteran was granted a period of 30 days to submit additional evidence. In June 2013, the Veteran submitted additional evidence along with a waiver of initial consideration of that evidence. Thus, the Board may consider the evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2013). In a May 2013 submission, the Veteran's representative stated that the Veteran was "entitled to service connection for cervical cancer." The issue perfected on appeal is entitlement to service connection for uterine cancer. At the April 2013 hearing, the Veteran was specifically asked if she had cervical cancer, and she responded that she had cancer of the uterus. See Transcript on page 3. The Veteran has not alleged at anytime during the appeal period that she ever had cervical cancer. If the Veteran wishes to file a claim for entitlement to service connection for cervical cancer, she may do so in writing. In August 2013, the Veteran submitted a motion for advancement on the docket. In September 2013, the Board denied the motion and noted that documention to support the request had not been provided. In March 2014, the Veteran submitted another motion for advancement on the docket and provided documentation to substantiate her request. The Board will grant the Veteran's motion. Thus, the appeal is now advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is warranted in connection with the issues of entitlement to service connection for a psychiatric disorder, to include PTSD and depression, and entitlement to service connection for residuals of uterine cancer, to include a hysterectomy, which is described below. I. Agent Orange Exposure Verification The Veteran has alleged that she was exposed to Agent Orange during her eight weeks of basic training at Fort McClellan in Alabama. She first made this allegation at the April 2013 hearing before the undersigned. VA had attempted to obtain the Veteran's service personnel records, and was unable to obtain them. See April 2011 VA Memorandum. The Board will accept, as fact, that the Veteran served at Fort McClellan for eight weeks in 1962 during basic training. Pertinent provisions of the VA Adjudication Manual set forth procedures that VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam. See M21-1MR, Part IV.ii.2.C.10 (o). The Board is remanding this claim to have these procedures followed. The Veteran alleges that she served at Fort McClellan in 1962 for eight weeks. The Board will request that she provide an estimate of the eight weeks she was stationed at Fort McClellan. II. VA Treatment Records In an August 2013 letter, a VA psychiatrist stated that the Veteran had been initially assessed by her on May 21, 2013 and appeared for a follow-up appointment on August 29, 2013. These records are not in the claims file, to include Virtual VA or VBMS. Thus, these relevant records should be associated with the claims file. III. VA Examination The Board finds that a VA examination is warranted in connection with the claim for service connection for a psychiatric disorder, to include PTSD and depression. There is evidence of a current disability, an in-service incident, and an indication that the current diagnosis of PTSD may be related to an in-service incident. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). IV. Intertwined Issues Because the actions requested on remand could result in a grant of service connection for a psychiatric disorder and residuals of uterine cancer, which, in turn, could potentially result in service connection for intervertebral disc syndrome and arthritis and a TDIU, the Board finds that the claims for service connection intervertebral disc syndrome of the cervical and lumbar spine, arthritis of the upper and lower extremities and TDIU are inextricably intertwined with the claims for service connection for a psychiatric disorder and residuals of uterine cancer. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have a significant impact on the outcome of the other). Therefore, action on these other service connection and TDIU claims is deferred. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask her to provide more specific information regarding the dates and circumstances under which she was exposed to Agent Orange at Fort McClellan. Specifically, the Veteran has claimed she was stationed there for at least eight weeks in 1962. She should provide VA with an estimate of the months that she was there. 2. After completion of the above, furnish the Veteran's detailed description of exposure to Agent Orange at Fort McClellan in 1962 to Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as alleged. 3. If Compensation Service does not confirm that herbicides were used as alleged, and the Veteran has provided sufficient information to permit a search by the JSRRC guidelines, send a request to the JSRRC for verification of exposure to herbicides. If sufficient information cannot be obtained from the Veteran to meet the JSRRC guidelines, refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. 4. Obtain the VA mental health treatment records from the VAMC in Philadelphia, Pennsylvania, beginning in May 2013. 5. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of her psychiatric disorder. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. The examiner is asked to state what, if any, psychiatric disorders are demonstrated in the record and through examination of the Veteran. While all evidence should be reviewed, the examiner's attention is drawn to the following facts: * The Board finds as fact that the Veteran was sexually assaulted while in service in approximately 1963. * In a December 1964 Report of Medical History, the Veteran denied ever having or having then frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. She also denied ever having or having then venereal disease. * In a September 2008 VA treatment record, the Veteran was being seen for the first time in approximately two years. A review of systems shows that as to the psychiatric examination, the examiner wrote, "No sadness, no substance abuse." A depression screen was performed at that time and was negative. * In a December 2010 VA treatment record, the Veteran reported she had been raped in service and developed an STD, which led to her having a hysterectomy. The examiner wrote, "She stated that she has coped reasonably well over the years, but is reminded by her hysterectomy scar." * In February 2011, the Veteran sought treatment for military sexual trauma to obtain documentation of PTSD but stated she did not feel she needed treatment at that time. The examiner noted the Veteran reported she had been coping with her symptoms for many years. * In an August 2013 letter, a VA psychiatrist wrote that the Veteran had PTSD and depression due to military sexual trauma. * In the August 2013 letter, the VA psychiatrist stated she had seen the Veteran on two occasions in connection with treatment for PTSD/depression. These records are not part of the claims file, but should have been added prior to the current examination, and the examiner should review them as well, and any other relevant records that have been added to the file. Based on your review of the record, the examiner is asked to address the following question: Accepting the Veteran's description as to the in-service military sexual trauma as true unless there is an affirmative medical reason to question it, is it at least as likely as not (i.e., at least equally probable) that any current psychiatric disorder(s) was incurred during the Veteran's service from February 1962 to February 1965? As to the Veteran's descriptions of her post-service symptom history, please address whether there is any medical reason (such as research about symptom profiles or reporting by MST victims) to believe that any or all of the statements of the Veteran are accurate or inaccurate. In doing so, please recognize that this question is strictly intended as a medical question -- the ultimate weight, if any, to be given to the absence of contemporaneous notations in the record, conflicting statements, or other similar factors bearing upon credibility is a legal issue for the adjudicator to resolve. In answering the question, please state the reasoning upon which you base your conclusion(s). For example, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how those facts and information justify your opinion. 6. Thereafter, undertake any other development action that is deemed warranted. 7. Readjudicate the claims of entitlement to service connection for (1) a psychiatric disorder, to include PTSD and depression; (2) residuals of uterine cancer, to include hysterectomy; (3) intervertebral disc syndrome of the cervical and lumbar spine; and (4) arthritis of the upper and lower extremities; and entitlement to a TDIU, with consideration of all pertinent evidence and legal authority. If any of the benefits sought on appeal remains denied, the RO should furnish to the Veteran and her representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond. 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 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). _________________________________________________ JAMES D. RIDGWAY 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).