Citation Nr: 1752432 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-37 171A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, other than PTSD, to include as secondary to a service-connected disability. 2. Entitlement to service connection for PTSD. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran served on active duty in the Navy from March 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2013, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge. This appeal was previously before the Board in April 2014 and May 2017 remanded for additional development. As noted in the May 2017 Board decision, the Veteran filed a claim for service connection for migraine headaches in a January 2015 statement, but this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The issues of entitlement to service connection for PTSD and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's persistent adjustment disorder with mixed anxiety and depression had its onset in service. CONCLUSION OF LAW The Veteran's persistent adjustment disorder with mixed anxiety and depression was incurred in service. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his psychiatric condition is related to his concerns over asbestos exposure while in the military. The Veteran also contends that his psychiatric disability is secondary to his service-connected left wrist disability. See December 2013 Board hearing transcript, p.13; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Board notes that service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service treatment records show no diagnosis or treatment for a psychiatric condition during service. Post-service VA treatment records show a current diagnosis of anxiety disorder NOS and a positive depression screen during the appeal period. The October 2017 VA examiner diagnosed persistent adjustment disorder with mixed anxiety and depression and determined the condition was related to the Veteran's service as he was exposed to asbestos and is worried about developing asbestosis. The examiner also determined the Veteran's persistent adjustment disorder with mixed anxiety and depression is related to his service-connected left wrist condition. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for persistent adjustment disorder with mixed anxiety and depression is warranted. ORDER Service connection for persistent adjustment disorder with mixed anxiety and depression is granted. REMAND A May 2017 Board decision granted a 30 percent disability rating for moderate incomplete paralysis of the median nerve associated with residuals of removal of a ganglion cyst of the left wrist. This decision has not been implemented in a rating decision. The AOJ must issue a rating decision implementing this decision. The Veteran reported symptoms of PTSD and VA and private treatment records show positive PTSD screenings during the appeal period. Although the Veteran was provided a VA examination for mental disorders other than PTSD and eating disorders in October 2017, a VA PTSD examination has not been provided. Accordingly, the Board has determined the issues of service connection for a psychiatric disorder, to include as secondary to a service-connected disability and entitlement to service connection for PTSD should be bifurcated and a VA PTSD examination is warranted. The question of whether the Veteran meets the scheduler requirements for a TDIU as set forth in 38 C.F.R. § 4.16(a) is inextricably intertwined with the assignment of a disability evaluation for the newly service-connected persistent adjustment disorder with mixed anxiety and depression and the adjudication of entitlement to TDIU. Thus, a decision by the Board on the Appellant's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Additionally, a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, is not of record. A VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, must be completed by the Veteran to obtain more information regarding his work history and education. Accordingly, the case is REMANDED for the following action: 1. Issue a rating decision implementing the May 2017 Board decision, which granted a 30 percent disability rating for moderate incomplete paralysis of the median nerve associated with residuals of removal of a ganglion cyst of the left wrist. 2. Request that the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his claim that are not already of record. The RO should take appropriate measures to request copies of any outstanding medical records and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 4. After the above development has been completed, afford the Veteran a VA PTSD examination. The claims file should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. A diagnosis of PTSD must be ruled in or excluded. Then, the examiner must determine whether it is at least as likely as not that PTSD is related to or had its onset during service. 5. Then readjudicate the appeal. If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and allowed an appropriate period of time to respond. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs