Citation Nr: 1751387 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-63 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and/or anxiety disorder, to include as secondary to service-connected left ear tinnitus. ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from June 1999 to June 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record, i.e., that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim. Accordingly, the Board has expanded the issue as indicated on the title page. In May 2017, the Veteran revoked his power of attorney for the service organization that previously represented him. The Board recognizes the Veteran as proceeding pro se. 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 appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran filed a claim for service connection for PTSD in October 2012. Outpatient treatment records dated in April 2012 indicate a diagnosis of PTSD based on the Veteran's indication that he faced combat as an Army Ranger. Records indicate he received hostile fire/imminent danger pay between November 1, 2001 and March 31, 2002 and was deployed to Macedonia. However, his DD-214 and personnel records do not reflect participation in combat or any combat related awards or decorations. In addition, the available records do not show receipt of a Ranger tab or attendance at Ranger school. In an October 2014 statement in support of claim for service connection for PTSD, the Veteran stated his stressor incident occurred in Kosovo and that he "became a robot for the Battalion." He stated he "lost all reality of the world around" him and he was still "deprogramming". The Veteran's personnel records do not indicate service in Kosovo. In October 2016, the Veteran underwent a VA examination. He reported two stressors that reportedly occurred in Macedonia, witnessing a friend commit suicide and involvement in firefights. The examiner found his stressor statements vague and that they did not appear consistent with the circumstances, conditions or hardships of his duty assignment at the time he was stationed in Macedonia. As such, a diagnosis of PTSD was not rendered. Alcohol Use Disorder (in remission), Amphetamine Use Disorder (in remission), Major Depressive Disorder and Other specified Personality Disorder with Cluster B traits were diagnosed. The examiner noted that the Veteran received no treatment for psychiatric concerns during service and that personality disorders are by definition enduring traits that begin in adolescence and are not considered a disability for which compensation can be paid. In a December 2016 statement in support of claim, the Veteran argued that if his hostile fire/imminent danger pay did not establish combat service, that VA failed in its duty to assist by not attempting to verify his stressors through the Joint Services Records and Research Center (JSRRC) or another appropriate entity. Thereafter, in April 2017, the Veteran filed a claim for service connection for an anxiety condition, to include as secondary to his service-connected left ear tinnitus. He argued that tinnitus had aggravated his multiple diagnosed psychiatric conditions and directly caused significant anxiety symptoms that affected his attention, sleep and communication. In May 2017, the Veteran was scheduled for and underwent a VA examination. Unspecified anxiety disorder was diagnosed. The examiner opined that the Veteran's anxiety condition "likely is related to his tinnitus, given his isolation, agitation, social nervousness and sleeping problems." He stated "[t]hese issues are specifically related to his tinnitus per his report." In an August 2017 statement, the Veteran specifically requested initial AOJ review of the May 2017 VA examination and opinion regarding his anxiety disorder and tinnitus. As the Board is remanding the claim, there is no prejudice to the Veteran in ordering additional development along with readjudication by the AOJ which will include consideration of the May 2017 examination and opinion. Regarding the claim for PTSD, the Board finds that efforts should be made to verify the Veteran's reported in-service stressors in Macedonia due to evidence that he served in a hostile fire/imminent danger area between November 2001 and March 2002. This should include obtaining the Veteran's full service personnel record to verify his assertion of serving in combat as an Army Ranger. Regarding acquired psychiatric disabilities other than PTSD, to include anxiety disorder, the Board finds the May 2017 opinion contradictory to the Veteran's assertions. The examiner opined that the Veteran's tinnitus caused his anxiety. However, the Veteran in April 2017 never asserted his mental health issues were caused by tinnitus, but instead that his symptoms worsened as a result of the tinnitus. Simply put, the examiner did not adequately explain the basis for the opinion that tinnitus caused an anxiety disorder in light of the Veteran's contentions. Therefore, an additional opinion should be obtained. Finally, it does not appear that the Veteran has been fully advised of the requirements for service connection on a secondary basis. Such notice should be sent to the Veteran on remand. Once such development is completed, the RO should readjudicate the claim and consider all evidence, to include the May 2017 VA examination and opinion as requested by the Veteran, prior to providing the Veteran with a SSOC. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Undertake any necessary development to independently verify the in-service stressors described by the Veteran at the October 2016 VA examination - involvement in firefights and witnessing a suicide. This specifically includes obtaining the Veteran's full service personnel record. The AOJ should consider whether there is enough information to contact JSRRC for verification. Of note, records indicate the Veteran received hostile fire/imminent danger pay from November 1, 2001 to March 31, 2002 and served in Macedonia where he claims the stressor incidents occurred. 2. If an in-service stressor is verified or it is determined the Veteran did, in fact, serve in combat, the RO should undertake any further development necessary in adjudicating a claim for service connection for PTSD. For example, consideration should be given as to whether an additional examination is necessary. 3. Send the appropriate notification letter to the Veteran regarding the requirements for secondary service-connection. 4. Regarding service connection for an acquired psychiatric disorder, to include anxiety disorder, send the claims file to an examiner for an etiology opinion. The need for examination is left to the discretion of the examiner. Following review of the claims file, the examiner is asked to address whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's anxiety disorder was (1) caused or (2) aggravated beyond its natural progression by his service-connected left ear tinnitus. In rendering this opinion, the examiner should consider the Veteran's statements that his anxiety disorder symptomatology has worsened because of his tinnitus. If aggravation is found the examiner must identify the baseline level of severity prior to aggravation or the severity at the first point it is ascertainable after the aggravation began. The examiner should explain the medical basis for any conclusions reached, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 5. When the development requested has been completed, readjudicate the Veteran's claim. If the benefits sought are not granted, furnish the Veteran with a supplemental statement of the case and provide him an opportunity to respond in accordance with applicable statutes and regulations. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).