Citation Nr: 1753946 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-08 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a back disability, other than scoliosis. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a generalized anxiety disorder. 3. Entitlement to an increased rating in excess of 20 percent for hepatitis B and hepatitis C. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012, November 2012, and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the February 2012 rating decision, the RO denied what it characterized as the Veteran's application to reopen his previously denied claim for service connection for a back disability. In the November 2012 rating decision, the RO denied entitlement to service connection for PTSD. In the January 2014 rating decision, the RO continued the 20 percent disability rating for hepatitis B and hepatitis C. In March 2017, the Veteran presented sworn testimony during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that in a February 2004 rating decision, the RO denied entitlement to service connection for a back disability. The Veteran appealed that decision to the Board. In June 2007, the Board denied the Veteran's service connection claim for a back disability, on the basis that his diagnosed back disability, scoliosis, levoscoliosis, was a developmental or congenital disability. The Veteran did not appeal the June 2007 Board decision. However, in September 2007, the Veteran submitted a motion alleging that the June 2007 decision was clearly and unmistakably erroneous. In February 2009, the Board denied the motion for revision of the June 2007 Board decision denying entitlement to service connection for a low back disability on the grounds of clear and unmistakable error. In December 2011, the Veteran submitted a claim for service connection for degenerative disc disease (DDD) of the lumbar spine. To this end, when determining whether new and material evidence is required or a claim should be addressed on a de novo basis, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries" or whether it is evidence tending to substantiate an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). Here, the Veteran is currently diagnosed with DDD of the lumbar spine, which is a non-congenital disability; therefore, the Board finds that the Veteran's December 2011 claim is a new claim and, thus, will review the claim on a de novo basis, as indicated on the title page. Id. The Veteran's acquired psychiatric disability claim has been adjudicated as one for service connection for PTSD; however, given the various diagnoses of acquired psychiatric disorders of record, the claim has been recharacterized more broadly, in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). During the pendency of the appeal for a higher rating for hepatitis B and hepatitis C, the Veteran has claimed that is no longer employed due to his service-connected hepatitis B and hepatitis C. Thus, the issue of entitlement to a TDIU is before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A. Back Disability The Veteran claims that his back disability is related to his military service. See, e.g., Board hearing transcript dated March 2017. Specifically, he asserts that during the course of his military occupation specialty (MOS) as a medical laboratory specialist, he carried heavy supplies. He also claims that his back disability is the result of an in-service automobile accident. He also reports consistent back pain in and since service. Id. The Veteran's DD-214 Form confirms that his MOS was medical laboratory specialist. His service treatment records (STRs) reveal that in November 1981, he had an upper respiratory complaint and said that his chest and back hurt when he coughed. In July 1984, the Veteran complained of low back pain for three days. Current VA treatment records show a diagnosis of DDD of the lumbar spine. See VA treatment records dated June 2007 and August 2008. In summary, the evidence of record suggests that the Veteran's DDD of the lumbar spine may be associated with in-service events or injuries; however, he has not been afforded a VA examination to determine the nature and etiology of his claimed disability. Accordingly, the Board finds that a remand is necessary to afford the Veteran a VA examination as to his claimed back disability. See 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). B. Acquired Psychiatric Disorder The Veteran attributes his acquired psychiatric disorder to witnessing a soldier jump on a live grenade during a training accident at Schofield Barracks in June 1984 and a helicopter crash in 1985, which took the lives of eight soldiers. See, e.g., Board hearing transcript dated March 2017. The Veteran further asserts that he was responsible for identifying the mutilated remains from the helicopter crash. The Veteran reported his acquired psychiatric disorder dates back to his time in service. VA treatment records show current acquired psychiatric disorders, to include a generalized anxiety disorder. Given the Veteran's reports attributing his current acquired psychiatric disorder to service, the Board finds that the low threshold of the McLendon standard has been met, and the Veteran should be afforded a VA examination. See McLendon, 20 Vet. App. 79, 81 (2006). C. Hepatitis B and Hepatitis C The Veteran claims that his hepatitis B and hepatitis C is not accurately depicted by his current 20 percent rating. During the March 2017 Board hearing, the Veteran testified that his hepatitis B and hepatitis C has worsened. Specifically, he asserted that he has night sweats, weight loss, loss of appetite, pain in the right side, cramping, chronic diarrhea, and fatigue. He also stated that he is unmotivated and has decreased due to his hepatitis B and hepatitis C. The evidence shows that the Veteran was last afforded a VA examination in January 2014. At that time, he reported daily fatigue, malaise, and intermittent right upper quadrant pain. Significantly, the Veteran's VA treatment records are only current through 2014. As indicated above, the Veteran was last afforded a VA examination in January 2014, since that time the Veteran has testified of worsening symptoms that warrant a new examination to assess the current severity of his service-connected hepatitis B and hepatitis C. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). Therefore, upon remand the Veteran should be afforded a new VA examination and updated VA treatment records should be obtained and associated with the claims file. D. TDIU During the March 2017 Board hearing, the Veteran testified that he was employed as a youth counsellor until 2008 and that he is no longer employed due to his service-connected hepatitis B and hepatitis C. In this case, the issue of entitlement to a TDIU is intertwined with the increased rating claim for hepatitis B and hepatitis C and adjudication will be deferred until that issue is adjudicated. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Finally, although some of the Veteran's service personnel records are associated with the claims file, a review of the record suggests that the Veteran's service records are not complete. Therefore, the Board finds upon remand, the AOJ should attempt to obtain the Veteran's complete service records. Accordingly, the claims are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All such available documents should be associated with the claims file. 2. . Obtain the Veteran's complete service personnel and treatment records. Any response should be associated with the Veteran's claims file. If said records cannot be obtained, provide the Veteran with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e). All such available records should be associated with the Veteran's claims file. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his back disability. All relevant electronic records contained in the VBMS and Virtual VA systems, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The claims file must be sent to the examiner for review. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's diagnosed DDD of the lumbar spine had its onset in service, or any other diagnosed lumbar spine disorder, is otherwise related to service, or manifested within one year of his separation from service. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The examiner is asked to address/comment on the Veteran's assertions that he has experienced back pain since service. 4. Schedule the Veteran for a VA examination by a psychologist or psychiatrist to determine the nature and etiology of his acquired psychiatric disorder. The claims file, to include a copy of this remand, must be send to the examiner for review; consideration of such should be reflected in the completed examination report. All necessary tests should be conducted. The psychiatrist or psychologist should clearly identify all psychiatric disorders-to include a generalized anxiety disorder, that have existed since approximately July 2012 the date of the Veteran's claim in this case (even if now asymptomatic or resolved). If the examiner finds that the Veteran's meets the criteria for PTSD, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s). Then, as to any such disability other than PTSD, to include a generalized anxiety disorder, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that a current acquired psychiatric disability had its onset in service, or is otherwise related to service. The psychiatrist or psychologist should not rely solely on the absence of medical records as a basis for the opinion and should consider the Veteran's statements, particularly his reports of continuity of symptoms. The psychiatrist or psychologist should provide complete rationale for each opinion expressed and conclusion reached. 5. Then, schedule the Veteran for a VA examination to evaluate the severity of his service-connected hepatitis B and hepatitis C. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire. All opinions expressed should be accompanied by supporting rationale. 6. Thereafter, readjudicate the issues on appeal, to include entitlement to a TDIU. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court. 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).