Citation Nr: 1454635 Decision Date: 12/11/14 Archive Date: 12/17/14 DOCKET NO. 12-18 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected syncope. 2. Entitlement to service connection for headaches, to include as secondary to service-connected syncope and scar. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected back disability and scar, and/or a psychiatric disorder. 4. Entitlement to an increased rating for subscapular bursitis of the left shoulder, evaluated as 30 percent disabling prior to January 3, 2012, and as 20 percent disabling, since January 3, 2012. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from April 2001 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of September 2011 and February 2012 rating decisions of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2011, the Veteran filed a completed VA Form 21-22a effectively revoking the then power of attorney of record in favor of John S. Berry, a private attorney. The February 2012 rating decision reflects that the RO reduced the 30 percent disability rating for chronic subscapular bursitis of the left shoulder to 20 percent, effective January 3, 2012. Because the reduction in the disability rating did not affect the Veteran's overall disability rating, the RO was not required to comply with the notice requirements typical in reduction cases. Cf. 38 C.F.R. § 3.344 (2014); see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The issues pertaining to service connection for psychiatric symptoms have been recharacterized as one of entitlement to service connection for a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a psychiatric disorder, headaches, and erectile dysfunction, as well as higher ratings for his service-connected left shoulder disability. VA is responsible for developing all theories of entitlement, whether or not they are raised by the Veteran. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). The Veteran served in the Southwest Asia Theater of operations in the Persian Gulf, and subject to various conditions, service connection may be granted for a disability due to undiagnosed illness in a Persian Gulf Veteran. Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include but are not limited to headache and sleep disturbances. 38 C.F.R. § 3.317(b). The RO must provide the Veteran with appropriate notice of the evidence needed to establish service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In addition, the Veteran asserts that he has a psychiatric disorder, to include PTSD and sleep disturbance, due to stressful events experienced during service aboard the USS Bunker Hill. The May 2012 VA examination report reflects that the Veteran does not meet the criteria for a diagnosis of PTSD. Nonetheless, although the examiner deferred any diagnoses associated with depression or anxiety symptoms because there had been no significant period of sobriety, the examiner opined that it was less than likely that any of the depression or anxiety symptoms were related to service, noting onset of symptoms three to four years earlier. Moreover, the report of examination does not adequately address either VA treatment records in 2011 reflecting a history of difficulties with depression and sleep since separation, a non-substance use Axis I diagnosis of depressive disorder, not otherwise specified, and notation of possible dysthymic disorder, or the service treatment records, to include an October 2003 Post-Deployment health assessment reflecting that during the deployment he developed symptoms of still feeling tired after sleeping, and complaints of frequent trouble sleeping at separation in September 2005. This is particularly problematic as the Veteran alleges his sleep problems are potentially related to his claimed psychiatric disability. Further, as reflected in September 2012 correspondence, the Veteran alternatively asserts that the cause of his psychiatric disorder is related to service-connected syncope. He submitted an internet article noting that "vasovagal syncope can be caused by acute stress or fear and is therefore implicated in anxiety, panic, and major depressive disorders." The May 2012 VA examiner did not provide an opinion as to whether a psychiatric disorder is related to service-connected syncope. Based on the above, the Board finds the May 2012 VA examination report to be inadequate. The Veteran is to be afforded a new VA examination with respect to the nature and etiology of a psychiatric disorder. Additionally with respect to service connection for headaches, in April 2011 correspondence, the Veteran stated that he has had weekly headaches since service, and in his February 2012 notice of disagreement, onset of headaches was noted to be during service in approximately 2005. In the alternative, he asserts that his current headaches are secondary to a service-connected syncope and/or the service-connected scar due to a fall during a syncope episode, and/or a psychiatric disorder. Although the June 2012 statement of the case notes no reference to headaches during service, a May 2004 service treatment record reflects complaints of headache along with nausea and vomiting, and a December 2004 record reflects complaints of occipital headache "(pre-syncope)." In light of the Veteran's assertions and the evidence, a VA examination with respect to the nature and etiology of his headaches is warranted. With regard to erectile dysfunction, in the February 2012 notice of disagreement, the Veteran asserted that his erectile dysfunction is secondary to his service-connected back disability, and/or a service-connected scar, and/or a psychiatric disorder. Although it was indicated that he was submitting a VA Form 21-4142 for a private physician who treated him for erectile dysfunction, evidence in that respect is not of record. Regardless, the issue of entitlement to service connection for erectile dysfunction is inextricably intertwined with another service connection claim. The Board must defer adjudication of entitlement to erectile dysfunction pending resolution of the inextricably intertwined service connection claim for a psychiatric disorder issue inasmuch as a grant of service connection for psychiatric disorder would require readjudication of the erectile dysfunction claim on a secondary basis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). With respect to the evaluation of the Veteran's service-connected left shoulder disability, the February 2012 rating decision reflects that the RO reduced the 30 percent rating for chronic subscapular bursitis of the left shoulder to 20 percent, effective January 3, 2012. The record reflects that the 30 percent rating for chronic subscapular bursitis of the left shoulder assigned during the appeal period prior to January 3, 2012, was based on a September 2008 VA examination report reflecting chronic subscapular bursitis of the left shoulder resulting in abduction of the left shoulder to 90 degrees, with an exacerbation of pain resulting in additional limitation of abduction to 60 degrees. The February 2012 rating decision reflects the 20 percent rating assigned was based on the findings reported on VA examination in January 2012. Although the January 2012 VA examination report reflects a negative empty can test, a negative external rotation/infraspinatus strength test, a negative lift off subscapularis test, and a negative Hawkins test, a subsequent April 2013 VA examination report reflects a positive empty can test, a positive external rotation/infraspinatus strength test, and a positive crank apprehension test. In addition, the April 2013 report of examination notes that Veteran was unable to perform the lift-off subscapularis test and the Hawkins Impingement test. Further, and although no flare-ups of pain were noted in the January 2012 report of examination, the April 2013 VA examination report reflects flare-ups three to five times per month with severe left shoulder pain, and tenderness on palpation of the acromioclavicular joint was noted. The evidence is inadequate for a determination with respect to the evaluation of the Veteran's subscapular bursitis of the left shoulder. As such, the Veteran is to be afforded a new examination with respect to the nature and severity of his service-connected left shoulder disability. Lastly, the May 2012 VA examination report reflects accommodation through the Family and Medical Leave Act of 1993 (FMLA), and the April 2013 VA examination report notes the Veteran having missed work due to his left shoulder disability. Employers often require medical documentation to support extended absences under FMLA. Upon remand, the Veteran is to be asked to supply copies of any such medical documentation or prescription or authorization for leave taken due to the Veteran's left shoulder disability. VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, on remand, all pertinent FMLA-related records must also be obtained and associated with the record. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes the criteria required for a service connection claim asserted based on Persian Gulf War service under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. 2. Ask the Veteran to either submit to VA directly, or to provide authorizations for VA to request, records of treatment from private providers for any of the claimed conditions. 3. Ask the Veteran to provide or assist VA in obtaining any records which may document missed work due to his left shoulder disability, including any medical letters or notes addressing the need to take leave from work, treatment records, or work records documenting medical leave taken and the reasons for such leave. 4. Contact the Veteran's employer and the Department of Labor (or other appropriate agency) to obtain official documentation of any use of sick leave for a shoulder condition since October 2011, and any pertinent application for Family and Medical Leave Act (FMLA) benefits filed by the Veteran, as well as copies of all of the medical records upon which any decision concerning any original/continuing claim(s) for FMLA benefits was based. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 5. Schedule the Veteran for a VA examination by a psychologist or psychiatrist. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a psychiatric disorder is related to the Veteran's active service. If not, the examiner must address whether it is at least as likely as not that any psychiatric disorder is caused or aggravated by service-connected syncope. Both causation and aggravation must be addressed. The opinion must address the VA treatment records in 2011 reflecting a history of difficulties with depression and sleep since separation and an Axis I diagnosis of depressive disorder, not otherwise specified, with notation of possible dysthymia; the October 2003 Post-Deployment health assessment reflecting that during the deployment he developed symptoms of still feeling tired after sleeping, and the September 2005 separation medical history in which he indicated having or having had frequent trouble sleeping; and his statements regarding stressful experiences during service. In addition, an opinion is to be provided as to whether the Veteran has a sleep disorder separate from a psychiatric disorder. , or if the claimed sleep disturbance symptoms are part of any diagnosed psychiatric disability. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Schedule the Veteran for a VA headache examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct all indicated tests. Based on a review of all medical documentation and history on file, including the service treatment records, the examiner is to provide a well-reasoned opinion consistent with sound medical judgment, as to the medical probabilities that the Veteran has headaches as part of a primary clinical diagnosis or as the result of an undiagnosed illness. If a diagnosed illness is found, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during, or is related to, the Veteran's active service, or are caused by or aggravated by the service-connected syncope and/or scar on the head. The opinion must address the May 2004 service treatment record reflecting complaints of headache, along with nausea and vomiting, and a December 2004 record reflecting complaints of occipital headache "(pre-syncope)." The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Schedule the Veteran for a VA left shoulder examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner must discuss in detail the severity of the Veteran's subscapular bursitis of the left shoulder to include the severity and duration of any associated symptomatology. The examiner is to provide range of motion findings and explain their effect on any additional functional limitation. This is to include the Veteran's assertions with respect to pain and any additional functional limitation during the appeal period (i.e., from October 2011). The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 8. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ M. N. HYLAND 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) (2014).