Citation Nr: 1609246 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 05-10 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1976 and from September 1978 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2004 and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2003, the Veteran filed a claim of entitlement to a rating in excess of 30 percent for his service-connected bilateral pes planus (flat feet), which was denied in January 2004 rating decision. The Veteran perfected an appeal to the Board and in August 2007, the Board denied the claim. In August 2008, the United States Court of Appeals for Veterans Claims (Court) granted a Partial Joint Motion for Remand filed by the parties. In December 2008, the Board remanded the claim for additional development. In September 2009, the Board denied the increased rating claim on a schedular basis and denied referral for extraschedular consideration. In an April 2011 memorandum decision, the Court affirmed the denial of the Veteran's increased rating claim on a schedular basis, but vacated the portion of the Board's decision denying referral for extraschedular consideration. In November 2011, the Board found that the evidence of record raised a claim for a TDIU and referred the Veteran's increased rating claim and TDIU claim to the Director of Compensation and Pension Service for extraschedular consideration. The Director of Compensation and Pension Service denied TDIU on an extraschedular basis in February 2012 and denied the Veteran's claim for an extraschedular rating for flat feet in October 2012. In April 2013, the Board denied the Veteran's claim for an extraschedular rating for his service-connected flat feet and denied entitlement to TDIU. The Veteran appealed that decision to the Court. In a July 2014 memorandum decision, the Court affirmed the portion of the Board's April 2013 decision denying an extraschedular rating for flat feet and vacated the portion of the decision denying TDIU. Entitlement to TDIU remained before the Board. In March 2015, the Board again denied entitlement to TDIU. In September 2015, the Court granted a Joint Motion for Remand vacating the March 2015 Board decision and remanding for further consideration. In the April 2014 rating decision, the RO denied entitlement to service connection for PTSD. Thereafter, the Veteran perfected an appeal of this issue. Although the rating decision and the Statement of the Case characterized the issue as entitlement to service connection for PTSD, the treatment records reveal that the Veteran also has been noted to have depressive disorder. As such, the Board has recharacterized the issue as listed above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In June 2013, service personnel records were received that existed, but were not previously associated with the claims file. Therefore, rather than determining whether new and material evidence has been submitted, the claim for service connection for an acquired psychiatric disorder will be reconsidered on the merits. 38 C.F.R. § 3.156(c) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Further development is required before the claims can be adjudicated. The Veteran receives consistent treatment from VA; however, treatment records dated subsequent to March 2014 have not been obtained and associated with the claims file. On remand, attempts must be made to obtain complete VA treatment records regarding the Veteran dated since March 2014. 38 C.F.R. § 3.159. The Veteran was afforded a VA medical examination in March 2014 in connection with his claim of service connection for a psychiatric disability. The examiner concluded that the Veteran had subsyndromal posttraumatic stress. The examiner recounted the Veteran's reported stressor related to military sexual trauma (MST) and found that the Veteran's personnel file supported the occurrence of the incident; however, the examiner found that the Veteran did not meet the criteria for diagnosis of PTSD. The rationale for that finding is unclear. In detailing the diagnostic criteria for PTSD that applied to the Veteran, the examiner checked that 7 of 8 of the criteria are met, but then appears to have determined that testing was invalid because of "unusually high endorsement" of symptoms and general distress. If that is the case, the examiner should so state. The question initially posed to the examiner by the RO may have led to the inconsistency. The RO asked whether, in the examiner's opinion, it is "at least as likely as not, that the Veteran's separation from service due to civilian confinement 12/1978 supports the occurrence of the described military sexual assault documented in his outpatient treatment records?" The examiner concluded that the separation from service did not support the occurrence of the stressor because there is information that civilian confinement was related to a different event. The RO's question posed a false choice: acceptance of the claimed MST in service does not necessarily depend on the reason for the civilian confinement. After giving a negative response to the RO's question, the examiner again referred to evidence in the record which appeared to confirm the Veteran's report of MST. On remand, a clarifying opinion is needed. In addition to addressing the adequacy of the claimed stressor, there is still a question as to whether the Veteran met the additional criteria for a diagnosis of PTSD. The examiner found that the Veteran did not experience the "breadth of symptoms." Further, the record includes other psychiatric diagnoses and the Board has characterized the claim of service connection to encompass all psychiatric diagnoses. As discussed in detail below, reports of the Veteran to a vocational expert and the vocational expert's findings indicate that there may be an association between the Veteran's service-connected foot disability and his acquired psychiatric disability. The Veteran claimed the pain from his feet affected all aspects of his life, include "mentally." The opinion on remand should address whether the Veteran's service-connected foot disability caused or permanently aggravated his acquired psychiatric disorder. As such, the Veteran must be afforded another VA medical examination. 38 C.F.R. § 3.159. In support of the claim for TDIU, the Veteran's representative submitted a December 2014 vocational evaluation. The evaluator stated that the Veteran's bilateral flat feet disability had a direct impact on his ability to work. The examiner opined that the "following are barriers to [the Veteran's] ability to become employed-these barriers are specifically due to his service-connected conditions and include: Mobility, Interpersonal skills, Work Tolerance, Communication and Work Skills." The examiner further stated that, "having been provided with documented proof of the Veteran's service-connected diagnosis and factoring his functioning ability and soft skills" it was the examiner's opinion that the Veteran is unable to sustain or maintain employment. The examiner further noted that the Veteran he is unable work due to constant pain that interferes with his sleep, an inability to walk or stand for any period of time, his need for pain medication and its affects and his lack of transferable skills. That opinion is inadequate because it appears to base the opinion on findings that are not appropriate for consideration in the TDIU claim. At present, the Veteran's only service-connected disability is flat feet. He is also diagnosed with diabetes and diabetic neuropathies. There is evidence in the records that the neuropathy interferes with his ability to stand and walk. The December 2014 vocational opinion does not appear to distinguish between impairment related to the service-connected versus nonservice-connected disabilities. The decision on the issue of entitlement to service connection for an acquired psychiatric disability may impact upon the Veteran's claim for TDIU. Therefore, the Board finds these issues to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the examination on remand should consider symptoms attributable solely to his service connected foot disability and those attributable solely to another disability, including acquired psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file complete records regarding the Veteran's treatment from VA dated since March 2014. 2. Thereafter, the Veteran should be afforded the appropriate VA examination to determine the etiology of any acquired psychiatric disability found to be present. The claims file must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should conduct the examination with consideration of the current diagnostic criteria for PTSD. The examination report should include a detailed account of all pathology present. Any further indicated special studies, including psychological studies, should be accomplished. (a) If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiner. (b) If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's military service, including the reported military sexual assault? (c) Is it at least as likely as not (50 percent or higher degree of probability) that any acquired psychiatric disability found to present was caused by or permanently aggravated by the Veteran's flat foot disability, including any medications the Veteran has been prescribed to treat the disability. The examiner should set forth a complete rationale for all findings and conclusions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then, obtain an opinion regarding whether the Veteran's service-connected disabilities have affected his ability to work by assessing his occupational impairment, if any. The claims folder and copies of all pertinent records should be made available to the examiner for review. Specifically, the examiner is asked to comment on the functional impairment or limitations imposed by the Veteran's service-connected bilateral pes planus. The RO should alert the examiner to whether consideration should also be given to any psychiatric disability diagnosed in connection with examination requested in paragraph 2. In providing the opinion, the examiner is asked to take the Veteran's level of education, special training, and previous work experience into consideration, but disregard the Veteran's age or any impairment caused by nonservice-connected disabilities. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran a supplemental statement of the case and provide the Veteran an opportunity 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 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). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).