Citation Nr: 1752260 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-09 533A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for recurrent perianal abscess, status post fistulectomy prior to January 25, 2010, in excess of 60 percent from January 25, 2010 to April 21, 2011, and in excess of 30 percent thereafter. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to February 1982. He also had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets the delay, a remand is necessary to adequately rate the Veteran's service-connected recurrent perianal abscess, status post fistulectomy disability as well as to adjudicate the issues of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, and the issue of entitlement to a TDIU. With regard to the Veteran's claim for an increased rating for his service-connected recurrent perianal abscess, status post fistulectomy, the Veteran stated, in the appellant's brief received in September 2017, that his symptoms have worsened since his last VA examination in May 2015. As the VA examination is more than two years old, a review of the Veteran's outpatient treatment records indicate he has undergone an additional surgical procedure related to this disability, and the Veteran is claiming his disability has increased in severity, a new VA examination is needed under the duty to assist. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43, 186 (1995). Turning next to the Veteran's claim for service connection for an acquired psychiatric disorder, the Board notes that the evidence of record has previously established that the Veteran was assaulted in service while on active duty for training. The Veteran's post service treatment records reveal the Veteran has a post-service history of substance abuse and mental health issues. The Veteran should be afforded a VA examination to determine if these behaviors are symptomatic of an acquired psychiatric disorder, to include PTSD, which is related to the assault the Veteran experienced in service. Finally, the issue of entitlement to a TDIU is inextricably intertwined with the claims on appeal. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, consideration of the Veteran's TDIU claim must be deferred pending the outcomes of his claim for entitlement to increased disability ratings and for entitlement to service connection claims. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records and associate them with the claims file. All records/responses received must be associated with the electronic claims file. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to the current nature and severity of his recurrent perianal abscess, status post fistulectomy. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. After the above development has been completed, schedule the Veteran for a VA examination with an appropriate medical professional to determine the current nature and severity of his recurrent perianal abscess, status post fistulectomy. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate testing should be conducted, and all findings set forth in a legible report. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The electronic file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner is asked to provide opinions as to the following: a) The examiner should determine if the Veteran has symptomatology that meets the criteria required under DSM-IV for a diagnosis of PTSD. b) If PTSD is diagnosed, the examiner should indicate the in-service stressor underlying that diagnosis; and should provide an opinion answering the following questions: (1) Is the claimed stressor adequate to support a diagnosis of PTSD? (2) Are the Veteran's symptoms related to the claimed stressor? The claimed stressor is a physical assault that occurred in July 1982 which is documented in the Veteran's STRs and service personnel records. c) The examiner should review the claims file and determine whether there is evidence of behavior changes or other relevant changes following the claimed assault. d) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has PTSD as a result of the personal assault he experienced in service. e) The examiner should also provide an opinion as to whether it is at least as likely as not that any current psychiatric disorder other than PTSD is related to service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. A discussion of the underlying reasons for all opinions expressed must be included in the examiner's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide an explanation for the basis of that determination. 5. Then, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran and his representative a supplemental statement of the case and, after allowing the appropriate period of time for response, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. §§ 5109B, 7112 (2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).