Citation Nr: 1609085 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 11-27 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disability. 2. Entitlement to service connection for a psychiatric disability (to include depression and posttraumatic stress disorder (PTSD)), to include as secondary to service-connected residuals of a left ankle sprain with traumatic osteoarthritis. 3. Entitlement to service connection for a bilateral leg disability. 4. Entitlement to service connection for a sleep disability, to include insomnia. 5. Entitlement to service connection for vertigo. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from February to October 1991. She also had various periods of active duty for training (ACDUTRA) with the Army Reserve and Army National Guard. These matters initially came before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Montgomery, Alabama. In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for a right knee disability as new and material evidence had not been submitted, denied entitlement to service connection for PTSD, a bilateral leg disability, insomnia, and vertigo, and denied entitlement to a TDIU. The Veteran testified before a Decision Review Officer (DRO) at an October 2014 hearing at the RO. A transcript of the hearing has been associated with the file. A Board hearing before a Veterans Law Judge by way of videoconference was scheduled for a date in June 2015. The Veteran cancelled this hearing in May 2015. The issues of entitlement to service connection for tinnitus and a back disability have been raised by the record during the October 2014 DRO hearing (see page 6 of the hearing transcript) and on an October 2015 "Application for Disability Compensation and Related Compensation Benefits" form (VA Form 21-526EZ). These issues have not yet 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. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ for all issues except entitlement to service connection for an acquired psychiatric disorder. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's depression is related, at least in part, to her active duty service. CONCLUSION OF LAW The criteria for service connection for depression have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2015). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In regard to an acquired psychiatric disability, the Veteran contends that she has a current psychiatric disability related to stressors that she experienced during the Persian Gulf War, which included witnessing badly injured and deceased bodies and identifying deceased bodies while assigned to a medical unit in Iraq and Saudi Arabia during the Persian Gulf War. In the alternative, she claims that her current psychiatric disability is related to the pain associated with her service-connected left ankle disability. The Veteran was afforded VA psychiatric examinations in August 2011 and January 2015 and was diagnosed as having major depressive disorder not otherwise specified (NOS) and unspecified depressive disorder. The psychologist who conducted the August 2011 examination concluded that it was not possible to differentiate the experiences during the Veteran's deployment in 1991 with the impact of infidelity of her spouse upon her return. She was being treated for depression, but no specific traumatic event was reported. Simply being in the theater of operations did not substantiate a PTSD diagnosis, even though there were injuries and combat related casualties directly observed by the Veteran according to her reports. The psychologist who conducted the January 2015 examination opined that the Veteran's depression was not likely ("less likely") proximately due to or the result of her service-connected left ankle disability. She reasoned that the Veteran had various sources of pain and pain was not limited to her ankle. She also had other stressors not related to pain which were likely contributing to her depression, such as job dissatisfaction and social isolation. Also, a December 2014 VA examination indicated that there was insufficient radiologic evidence to warrant or confirm a diagnosis of traumatic osteoarthritis of the left ankle. Multiple left ankle x-rays from 1998 to 2014 showed no evidence of traumatic osteoarthritis. Thus, there appeared to be no relationship between the Veteran's depression and the residuals of a left ankle sprain. Given that the August 2011 VA examiner indicated that he could not differentiate her military experiences from the impact of the infidelity of her spouse, the Board finds that the evidence of record is in relative equipoise. Therefore, the benefit of the doubt inures to the Veteran. Accordingly, service connection is warranted for depression. In addition, as it appears that the Veteran's psychiatric symptoms cannot be differentiated; all symptomatology should be attributed to her now service-connected depression. See Mittleider v. West, 11 Vet. App. 181 (1998). ORDER Service connection for depression is granted. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. In this case, a November 2011 VA primary care treatment note and the Veteran's testimony during the October 2014 hearing include reports of bilateral leg pain and difficulty sleeping. Thus, there is competent evidence of current bilateral leg and sleep disabilities. The Veteran contends that she began to experience leg and sleep symptoms in service and that she has continued to experience these problems in the years since service. Hence, there is competent evidence of current bilateral leg and sleep disabilities, leg and sleep problems in service, and a continuity of symptomatology in the years since service, suggesting that the Veteran may have current bilateral leg and sleep disabilities related to service. Therefore, VA's duty to obtain examinations as to the nature and etiology of any current leg and sleep disability is triggered. Such examinations are needed to determine whether the Veteran has current leg and sleep disabilities and to obtain medical opinions as to the etiology of any such disabilities. Also, the Veteran submitted an October 2015 examination report from Bayside Orthopaedic Sports Medicine & Rehab Center (Bayside) which pertains to treatment for her claimed right knee disability. The examination report indicates that she was scheduled for follow up treatment in approximately 3 months. There are no more recent treatment records from Bayside in the file. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and ask for a release to obtain the records. If the Veteran does not provide the release, VA should ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not been taken with regard to any additional relevant treatment records from Bayside. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Lastly, the claim for a TDIU is inextricably intertwined with the service connection issues on appeal. As the Board is remanding the service connection issues and additional treatment records are being sought, the Board will defer adjudication of the TDIU issue. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where she has received treatment for a right knee disability, a psychiatric disability, a leg disability, a sleep disability, and vertigo, to include the dates of any such treatment. The Veteran shall also specifically be asked to complete authorizations for VA to obtain all records of her treatment for a right knee disability, a leg disability, a sleep disability, and vertigo from Bayside Orthopaedic Sports Medicine & Rehab Center (see the October 2015 examination report from Bayside) and any other sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any relevant private treatment records for which a sufficient release is obtained. All efforts to obtain these records must be documented in the file. If the Veteran fails to furnish any necessary releases for private treatment records, she shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning her claims. All such notification must be documented in the file. 2. Obtain and associate with the file all updated VA records of treatment, to specifically include all records from the Gulf Coast Veterans Health Care System dated from January 2015 through the present, and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current leg disability. All indicated tests and studies shall be conducted. All relevant electronic records contained in the VBMS and Virtual VA systems, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. For any current leg disability identified (i.e., any leg disability diagnosed since September 2008), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the current leg disability had its clinical onset during the period of service from February to October 1991, was permanently aggravated beyond its natural progression during that period of service, had its onset during any period of ACDUTRA or INACDUTRA, is due to disease or injury permanently aggravated beyond its natural progression during a period of ACDUTRA, is due to an injury permanently aggravated beyond its natural progression during a period of INACDUTRA, is related to the Veteran's reported leg symptoms during service, or is otherwise the result of a disease or injury incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA. In formulating the above opinion, the examiner shall specifically acknowledge and comment on any leg disabilities diagnosed since September 2008, the Veteran's reported leg symptoms in service, the record of treatment for left thigh pain and swelling in June 1983, the Veteran's reports of leg cramps on Report of Medical History forms dated in October 1988, April 1991, September 1995, and February 2001, and her reports of continuing leg symptoms in the years since service. The examiner must provide reasons for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current sleep disability. All indicated tests and studies shall be conducted. All relevant electronic records contained in the VBMS and Virtual VA systems, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. For any current sleep problems identified (i.e., any sleep problems experienced since September 2008), the examiner shall answer all of the following questions: (a) Do the current sleep problems represent a separate and distinct disability/disease entity or are they a symptom of the Veteran's psychiatric disability? (b) If the Veteran has a current disability manifested by sleep problems that is separate and distinct from her psychiatric disability (e.g., insomnia), is it at least as likely as not (50 percent probability or more) that the current sleep disability had its clinical onset during the period of service from February to October 1991, was permanently aggravated beyond its natural progression during that period of service, had its onset during any period of ACDUTRA or INACDUTRA, is due to disease or injury permanently aggravated beyond its natural progression during a period of ACDUTRA, is due to an injury permanently aggravated beyond its natural progression during a period of INACDUTRA, is related to the Veteran's reported sleep symptoms during service, or is otherwise the result of a disease or injury incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA? In formulating the above opinions, the examiner shall specifically acknowledge and comment on any sleep problems experienced since September 2008, the sleep symptoms associated with her diagnosed psychiatric disability, the Veteran's reported sleep symptoms in service, and her reports of continuing sleep symptoms in the years since service. The examiner must provide reasons for each opinion given. 5. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs