Citation Nr: 1750002 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 14-04 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and dementia, to include on a direct basis and as secondary to service-connected coronary artery disease status post bypass graft. 2. Entitlement to total disability due to individual unemployability (TDIU). 3. Entitlement to special monthly compensation based on the need for regular aid and attendance. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1968 to June 1970. He received a Bronze Star and a Purple Heart, and was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from April 2012 and November 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2017, a videoconference hearing was held before the undersigned. The Veteran's sister, who is the Veteran's fiduciary and has medical power of attorney over the Veteran, was also in attendance. A transcript of the hearing is of record. Case law provides that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). Since the record reflects PTSD in addition to depression and dementia, the Board has more broadly characterized the psychiatric claims on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND A remand is required so that a VA examination can be conducted for posttraumatic stress disorder (PTSD). A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2016). Regarding the first element, VA medical records from at least April 2017 indicate that the Veteran has "chronic PTSD." See March 2017 VA psychology note (diagnosis under DSM-5); September 2012 VA psychology note (diagnosis under DSM-IV). The Veteran has been receiving counseling for PTSD since at least July 2012, including group therapy on a near-weekly basis from January 2015 to February 2017. Taken together, these records constitute competent evidence of a current disability so as to satisfy the first McLendon element. Regarding the second and third elements, there are no statements from the Veteran that specifically describe in-service stressors. But the Veteran has combat experience in Vietnam, for which he was awarded the Bronze Star and Purple Heart. It is reasonable to assume that the circumstances justifying these awards constitute potential in-service stressors that may be associated with a current diagnosis of PTSD. Consistent with this, the Veteran's sister told one of the Veteran's doctors that "he was struggling from return of Vietnam[,] patrolling, nightmares[,] flashbacks[,] emotional irritability[,] and mood swings" with "some settling over time," but continued nightmares. It should also be noted that if the claimed stressor is related to combat, service department evidence that the service member engaged in combat or that the service member was awarded the Purple Heart, Combat Infantryman Badge, or similar citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2016). The second and third McLendon elements are satisfied. The fourth element is satisfied, in that there is insufficient competent medical evidence on file by which the Board can make a decision. It is not clear when the Veteran's symptoms started. While there is a current diagnosis, an October 2009 VA psychology record indicates a negative screening for PTSD, the Veteran denied PTSD symptoms in a March 2011 VA psychological record, and a December 2011 VA psychological record states that the full criteria for PTSD are not met. Given the somewhat conflicting nature of this evidence, the fourth and final McLendon element is satisfied. A VA examination is required. As noted in the May 2017 hearing, there is a March 2014 VA examination providing a positive diagnosis of PTSD. But the March 2014 VA examiner only specifically opines that the Veteran is not capable of managing his own financial affairs, which seems to have been the purpose of that opinion. Also, that examiner states that the Veteran is service-connected at 70 percent for PTSD, which has never been the case. This last statement calls into question the rationale behind the examiner's diagnosis. The March 2014 VA examination is therefore insufficient to support entitlement to service connection for PTSD. A new opinion is also required regarding the Veteran's claims of entitlement to an acquired psychiatric disorder, to include as secondary to service-connected coronary artery disease status post bypass graft. An October 2012 VA examiner opines that these disorders are less likely than not related to service because the Veterans' symptoms did not occur until after his stroke, which is not service-connected. This opinion does not address direct service connection as a result of service in Vietnam. An addendum opinion is therefore required. The Veteran's remaining claims are inextricably intertwined with the PTSD claim remanded for further development. Accordingly, they must be considered together, and thus a decision by the Board on the Veteran's non-PTSD claims would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). VA treatment records to June 15, 2017, have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from June 16, 2017, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all records of the Veteran's VA treatment from June 16, 2017, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Provide the Veteran with an opportunity to provide information regarding in-service stressors. Based on the information provided by the Veteran, the RO should take steps to verify the claimed in-service stressors, to include contacting all such entities deemed appropriate to provide any available information which might corroborate the Veteran's claimed stressors. However, the RO should take note of the fact that if the claimed stressor is related to combat, service department evidence that the service member engaged in combat or that the service member was awarded the Purple Heart, Combat Infantryman Badge, or similar citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 3. After completing steps 1-2 above, provide an examination and obtain a medical opinion regarding the nature and etiology of any acquired psychological disorder, including but not limited to PTSD, depression, and dementia. The examiner should review the entire claims file, including but not limited to the October 2012 VA psychological examination, conduct all necessary tests and studies, and provide the requested opinions. a. Identify all acquired psychiatric disorders currently present. b. Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder had its onset in service, or was otherwise caused by an in-service disease or injury. c. Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran's discharge from his period of active service. d. If a diagnosis of PTSD is warranted, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that PTSD is due to exposure to an actual confirmed or accepted combat-related stressor or the fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror. e. The examiner should also provide an opinion as to whether it is at least as likely as not that an acquired psychiatric disorder, including but not limited to depression and dementia, was aggravated beyond its natural progression by service-connected coronary artery disease or type II diabetes mellitus. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. 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). _________________________________________________ Michael J. Skaltsounis 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).