Citation Nr: 1743545	
Decision Date: 09/29/17    Archive Date: 10/10/17

DOCKET NO.  15-44 857	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

1.  Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress syndrome (PTSD). 

2.  Entitlement to service connection for a heart condition.  

3.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Ryan Farrell, Agent


ATTORNEY FOR THE BOARD

N. Brown, Associate Counsel

INTRODUCTION

The Veteran had active duty in the Air Force from June 1963 to September 1963, and in the Air National Guard from September 1963 to March 1969, March 1972 to March 1976, and March 1976 to February 1994. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction of this case was later transferred to Indianapolis, Indiana. 

On the August 2017 VA Form 8, Certification of Appeal, there appear to be no issues certified to the Board.  However, on the December 2015 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran's agent indicated clearly that the Veteran was only perfecting an appeal of the issue of entitlement to service connection for an acquired psychiatric condition, to include PTSD.  This is the issue that the Board addresses here.  See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). 

This appeal was processed using the VBMS and Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R.            § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of a heart condition and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.  VA will notify the Veteran if further action is required.






FINDING OF FACT 

The Veteran's acquired psychiatric disorder did not begin during service, is not otherwise related to active duty, did not exhibit within the first post-service year, and has not been continuous since separation. 

CONCLUSION OF LAW 

An acquired psychiatric disorder was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d. 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d. 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
As the Board will discuss in detail in the analysis below, the Veteran was provided with a VA examination during the appeal period.  A review of the VA examination report in August 2011 reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered opinions consistent with the remainder of the evidence of record for the claims.  The Board concludes that the examination report of record is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2016).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2016).


Service Connection 

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  As psychosis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R.         §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013).

In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychosis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  See 38 C.F.R. § 3.310 ; see also Allen v. Brown, 7 Vet. App. 439 (1995).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disorder.





The Veteran has asserted that he developed an acquired psychiatric disorder, to include PTSD, due to the traumatic events that he responded to while in service. 

In an August 2011 VA PTSD examination, the Veteran was not found to have a diagnosis of PTSD.  However, he was diagnosed with major depressive disorder, single episode, moderate.  The examiner found that the diagnosed condition is less likely than not related to the verified stressor because he reported and there is no medical evidence of clinically significant depressed mood prior to his heart problems (heart bypass surgeries) in 2005.  In this same examination, the Veteran reported that he has had a nightmare with regard to the traumatic events he experienced in service once monthly for the past 25 years. 


ORDER

Service connection for an acquired psychiatric disorder, to include post-traumatic stress syndrome (PTSD), is denied.


REMAND

As to the issues of a heart condition and TDIU, the Board notes that the RO denied both claims in the September 2011 decision. In August 2012, the Veteran filed a notice of disagreement for that rating decision. The RO has not yet issued a statement of the case with respect to these issues. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

In August 2017, a letter was sent notifying the Veteran that his appeal had been certified to the Board.  This letter was marked as returned mail with no forwarding address.  In order to afford the Veteran all due process, the RO must verify the Veteran's current address. 

On remand, any additional medical records should be obtained. 

Accordingly, the case is REMANDED for the following actions:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The AOJ should verify the Veteran's current mailing address.  His agent should be contacted and his accurate current address confirmed.  Document all efforts in this regard in the record and update all VA information storage systems appropriately.

2.  After receiving the necessary authorization, obtain and associate with the claims file all of the Veteran's relevant outstanding private treatment records.  If after making such a request, a negative response is received, this must be documented in the claims file and the Veteran must be properly informed.

3.  Obtain and associate with the claims file all outstanding VA Medical Center (VAMC) records.  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.

4.  After obtaining any additional evidence as directed above, the AOJ should issue a statement of the case (SOC) addressing the issues of a heart condition and TDIU. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations.

Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto.  The AOJ should advise the Veteran that the matter will be returned to the Board for appellate consideration only if he perfects a timely appeal.

5.  If the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matter 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).



_________________________________________________
LANA K. JENG
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) (2016).




Department of Veterans Affairs