Citation Nr: 1706362 Decision Date: 03/02/17 Archive Date: 03/16/17 DOCKET NO. 12-05 032A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), asthma, and bronchitis, to include as secondary to herbicide agent exposure and/or rheumatoid arthritis and/or PTSD. 2. Entitlement to service connection for rheumatoid arthritis, to include as secondary to PTSD and/or herbicide agent exposure. 3. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), rated as 50 percent disabling, from March 5, 2010, to February 19, 2013, and from April 1, 2013, to June 3, 2013, and rated as 70 percent disabling thereafter. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.Z., Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions issued by the Regional Office (RO) of the United States Department of Veterans Affairs (VA) in Detroit, Michigan. The Veteran testified before the Board at a videoconference hearing in April 2014. A transcript of that hearing has been associated with the claims file. In December 2014, the Board remanded the appeal for further development. As explained below, a remand is again required. The Board notes that the Veteran was assigned a temporary evaluation of 100 percent for his PTSD, effective February 20, 2013, through March 31, 2013, due to hospitalization over 21 days. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In March 2016, the Veteran submitted a claim for TDIU based on his service-connected PTSD. The Board notes that the RO has acknowledged such claim but also informed the Veteran that such claim must be deferred, pending the outcome of his claim for a higher initial rating for PTSD. See June 2016 correspondence. Accordingly, and pursuant to Rice, the Board has taken jurisdiction of such claim, as reflected on the title page. The issue of entitlement to vocational rehabilitation benefits has been raised by the record in a February 2015 statement, but 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 appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before a decision can be reached on the merits of the Veteran's claims. Regarding the Veteran's claim for a higher initial rating for his PTSD, the Board notes that, after the issuance of the most recent supplemental statement of the case (SSOC) in May 2015, in which such issue was addressed, the AOJ obtained evidence pertinent to the Veteran's claim in the form of a new VA psychiatric examination dated in June 2016, along with VA treatment records detailing mental health treatment. While the Veteran, himself, previously submitted additional evidence in July 2015, along with a waiver of evidence submitted by him pursuant to 38 C.F.R. § 20.1304 (c), such waiver is limited only to evidence submitted by him. The AOJ did not prepare an SSOC considering this newly received VA-generated evidence, and no withdrawal of the appeal of this issue has been submitted by the Veteran. Accordingly, remand for issuance of an SSOC which considers this newly received evidence is required. Additionally, the record indicates that there are missing private treatment records relevant to the Veteran's PTSD. VA treatment records reflect that in May 2014, the Veteran was transferred for emergency care for a "meltdown" to the Mercy Hospital Emergency Department-Hackey campus. The June 2016 VA examiner noted that the Veteran had brought such records to his examination for the examiner's review; however such records have not been added to the Veteran's electronic claims file. Accordingly, such records should be obtained on remand. Additionally, as the outcome of the Veteran's higher initial rating claim for service-connected PTSD may impact his claim of entitlement to a TDIU based on PTSD, the latter claim is inextricably intertwined with the former claim and adjudication of the TDIU claim must be deferred until the AOJ has adjudicated the Veteran's remanded higher initial rating claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 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). Turning to the Veteran's claim for rheumatoid arthritis and a lung disability, the Board finds that a new VA examination is warranted. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In support of his claims, the Veteran has submitted articles indicating a relationship between PTSD and autoimmune diseases to include rheumatoid arthritis, as well as an article noting a correlation between Agent Orange exposure and respiratory disorders. In January 2014, the Veteran was scheduled for a VA examination for his rheumatoid arthritis, during which the examiner considered whether such disability was related to PTSD. The examiner opined negatively on a relationship between the two, and in doing so included a citation to Wikipedia.com. In this regard, medical articles appearing on Wikipedia are not, at present, formally recognized by VA to possess official controlling authority for the veracity of any medical information and facts purported in such articles to be true. Accordingly, such a citation diminishes the probative value of the examiner's opinion. Additionally, the examiner concluded that, as there was "no additional literature support for the Veteran's claim," she was "going no further with this claim and an examination is not needed." During the April 2014 hearing, the Veteran's representative stated that such a declaration seemed adversarial to the Veteran and questioned the adequacy of the opinion, and the Board agrees that the January 2014 evaluation was unsatisfactory. In April 2015, an addendum opinion regarding the Veteran's rheumatoid arthritis was obtained, as well as an initial opinion regarding his lung disability. Regarding rheumatoid arthritis, the examiner stated that "a mental condition such as PTSD has no causal relationship with an autoimmune condition like rheumatoid arthritis. This was thoroughly explained in my opinion from 2014." Regarding the Veteran's claimed lung disability, the examiner stated "this is not a condition presumed to be related to Agent Orange exposure. There is no evidence in STRs (service treatment records) that the Veteran was diagnosed or treated for COPD while on active duty. There is no medical evidence to support that this condition is related to PTSD as the Veteran proposes." The above opinion is inadequate for a number of reasons, to include that the examiner did not elaborate on the prior inadequate opinion regarding rheumatoid arthritis and did not consider whether the Veteran's lung disability could be related to herbicide agent exposure on a direct basis. Furthermore, regarding the Veteran's claimed lung disability, the examiner based her opinion on a lack of in-service treatment, appeared to only specifically consider COPD without discussion of asthma or bronchitis, did not provide a full rationale for her finding that such was not related to PTSD and did not provide an opinion on whether such was related to rheumatoid arthritis. Additionally, the Board notes that an opinion was never obtained regarding whether the Veteran's rheumatoid arthritis was directly caused by Agent Orange exposure. As VA has undertaken to provide the Veteran with an examination regarding his rheumatoid arthritis claim, the Board finds that such theory of entitlement should be included in the opinion as well. Therefore, in light of the above, the Board finds that the Veteran should be afforded a thorough examination and opinion, supported by controlling medical authority, regarding his claimed rheumatoid arthritis and lung disability. While on remand, any recent, outstanding VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any recent, outstanding VA treatment records and associate them with the Veteran's electronic claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding pertinent, private records from his treatment at Mercy Hospital Emergency Department-Hackey campus in May 2014. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After any outstanding records have been obtained, schedule the Veteran for a VA examination (with someone other than the January 2014 examiner) to determine the nature and etiology of his rheumatoid arthritis and lung disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. Regarding rheumatoid arthritis, the examiner is asked to opine: A. Whether such disability is at least as likely as not (50 percent or greater likelihood) related to service, to include Agent Orange exposure? The examiner is advised that while the Veteran may not have a disease that is presumed to be related to Agent Orange exposure, service connection may still be warranted if the disorder is nevertheless found to be related to Agent Orange exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). B. Whether it is at least as likely as not that the Veteran's rheumatoid arthritis is caused OR aggravated (beyond the normal progression of the disease) by his service-connected PTSD? Regarding a lung disability, to include chronic COPD, asthma and bronchitis, the examiner is asked to opine: A. Whether is at least as likely as not (50 percent or greater likelihood) that such disorders are related to service, to include Agent Orange exposure? Please provide an opinion for each claimed lung disability. B. Whether it is at least as likely as not that such is caused OR aggravated (beyond the normal progression of the disease) by his rheumatoid arthritis or service-connected PTSD? Please provide an opinion for each claimed lung disability. In rendering the requested opinions, the examiner should consider the articles submitted by the Veteran indicating a relationship between PTSD and autoimmune diseases to include rheumatoid arthritis, as well as an article noting a correlation between Agent Orange exposure and respiratory disorders. The clinician must provide complete explanations in support of all opinions expressed. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence (to include all evidence added to the claims file since the last adjudication) and legal authority. 5. If the benefits sought on appeal remain denied, furnish the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ L.M. BARNARD 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).