Citation Nr: 1800113 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-43 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), schizophrenia, and adjustment disorder. 2. Whether new and material evidence has been received sufficient to reopen a claim for service connection for presbyopia and myopia with loss of visual acuity and light perception (recently claimed as an eye disorder). 3. Whether new and material evidence has been received sufficient to reopen a claim for service connection for periodontitis and various periodontal abnormalities. 4. Whether new and material evidence has been received sufficient to reopen a claim for service connection for multiple gunshot wounds, to include of the head, face, chest, arms, hands, feet, rib cage, and eyebrows. 5. Whether new and material evidence has been received sufficient to reopen a claim for service connection for rheumatoid arthritis of the upper and lower extremities. 6. Whether new and material evidence has been received sufficient to reopen a claim for service connection for onychochauxis. 7. Whether new and material evidence has been received sufficient to reopen a claim for service connection for tylomas. 8. Whether new and material evidence has been received sufficient to reopen a claim for service connection for headaches (also claimed as photophobia and light sensitivity). 9. Whether new and material evidence has been received sufficient to reopen a claim for service connection for chronic cough and/or lung disorder (also claimed as emphysema). 10. Whether new and material evidence has been received sufficient to reopen a claim for service connection for diabetes mellitus. 11. Whether new and material evidence has been received sufficient to reopen a claim for service connection for degenerative joint disease of the upper extremities and lower extremities, including the ankles and feet (also claimed as post-traumatic osteoarthritis). 12. Whether new and material evidence has been received sufficient to reopen a claim for service connection for right and left carpal tunnel syndrome. 13. Whether new and material evidence has been received sufficient to reopen a claim for service connection for fibromyalgia. 14. Whether new and material evidence has been received sufficient to reopen a claim for service connection for cervical spine disorder. 15. Whether new and material evidence has been received sufficient to reopen a claim for service connection for a lumbar spine disorder. 16. Whether new and material evidence has been received sufficient to reopen a claim for service connection for a left knee disorder (also claimed as multiple meniscus tears). 17. Whether new and material evidence has been received sufficient to reopen a claim for service connection for right shoulder injury. 18. Entitlement to service connection for hypertension. 19. Entitlement to service connection for fractured Adam's apple. 20. Entitlement to service connection for HIV AB negative status (also claimed as oral AIDS). 21. Entitlement to service connection for fractures of all toes (also claimed as edema strain). 22. Entitlement to service connection for bilateral metal and rubber pellets under skin. 23. Entitlement to service connection for a right arm disorder. 24. Entitlement to service connection for a left arm disorder. 25. Entitlement to service connection for right and left foot frostbite. 26. Entitlement to service connection for retinopathy. 27. Entitlement to service connection for full mandible and maxilla with extractions of three teeth. 28. Entitlement to service connection for alveolar bone loss. 29. Entitlement to service connection for gingivitis. 30. Entitlement to service connection for peritonitis. 31. Entitlement to service connection for bilateral shingles due to abdominal colon surgeries. 32. Entitlement to service connection for psoriasis. 33. Entitlement to service connection for bilateral bleph implants in eyelids. 34. Entitlement to service connection for blepharoconjunctivitis/conjunctivitis. 35. Entitlement to service connection for astigmatism. 36. Entitlement to service connection for bed sores, pimples, dry skin, and rash. 37. Entitlement to service connection for Beau's nails/Mee's nails. 38. Entitlement to service connection for a gait abnormality. 39. Entitlement to service connection for plantar fasciitis. 40. Entitlement to service connection for abdominal laser burns from surgery. 41. Entitlement to service connection for colon cancer. 42. Entitlement to service connection for bilateral gangrene of colorectum. 43. Entitlement to service connection for colorectum and transverse colon polyps. 44. Entitlement to service connection for hemorrhoids. 45. Entitlement to service connection for arytenoid banding. 46. Entitlement to service connection for an inguinal hernia. 47. Entitlement to service connection for hiatal hernia/gastroesophageal reflux disease (GERD). 48. Entitlement to service connection for inward heels. 49. Entitlement to service connection for wrist fracture. 50. Entitlement to service connection for elbow fracture. 51. Entitlement to service connection for skull fracture (also claimed as top of head puncture due to skateboard and BCT fire). 52. Entitlement to service connection for multiple fractures and sprains of tailbone. 53. Entitlement to service connection for deep vein thrombosis from shrapnel wound. 54. Entitlement to service connection for right thumb fracture. 55. Entitlement to service connection for tinnitus. 56. Entitlement to service connection for prostatitis. 57. Entitlement to compensation under 38 U.S.C. § 1151 for polyarthralgia/myalgias. 58. Entitlement to compensation under 38 U.S.C. § 1151 for polyneuralgia. 59. Entitlement to compensation under 38 U.S.C. § 1151 for pancreatitis. 60. Entitlement to compensation under 38 U.S.C. § 1151 for substance abuse (now also claimed as hashish and marijuana dependence). 61. Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae. 62. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. 63. Entitlement to dependents' educational assistance (DEA) under 38 U.S.C. Chapter 35. 64. Entitlement to recognition as a former prisoner of war (FPOW). 65. Entitlement to specially adapted housing. 66. Entitlement to nonservice-connected pension. 67. Entitlement to special monthly pension. 68. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status. 69. Entitlement to automobile and adaptive equipment or adaptive equipment only. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel (CONTINUED ON NEXT PAGE) INTRODUCTION The Veteran served on active duty from December 1976 to August 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2011, July 2013, August 2014, and July 2015 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board has recharacterized some of the claims for service connection as claims to reopen previously denied claims. Specifically, the agency of original jurisdiction (AOJ) has certified to the Board the issues of entitlement to service connection for schizophrenia, gunshot wounds to the eyebrows, and gunshot wounds to the rib cage. However, prior rating decisions broadly considered the Veteran's entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, and to multiple gunshot wounds to the head, face, chest, arms, hands, and feet, or to "any gunshot wounds." Therefore, these claims are encompassed in the pertinent claims to reopen as reflected on the title pages. With a substantive appeal received in September 2016, the Veteran requested a video conference hearing before a Veterans Law Judge to address all issues on appeal. However, in correspondence received in May 2017, he withdrew his request for a Board hearing. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2017). The Board notes that on March 15, 2017, the AOJ received the Veteran's notice of disagreement (NOD) with a rating decision issued earlier that month, which denied entitlement to compensation under the provisions of 38 U.S.C. § 1151 for alveolar bone loss, a bowel disorder, colitis, gastrointestinal tract cancer, and "HIV AB (antibody) negative;" and which denied entitlement to service connection for arteriosclerosis obliterans, bone cancer, bone fractures, cataracts, chronic obstructive pulmonary disease (COPD), "combat neurosis," eczema, prostate cancer, "respiratory cancer," and testicle cancer. Because it appears that the AOJ is adjudicating these claims, the Board will not address these issues at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(7). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Having reviewed the Veteran's entire electronic claims file, which currently consists of over 4,000 documents, including correspondence from the Veteran that at times has exceeded over 500 pages within a single document, the Board finds that additional development is required before deciding the claims on appeal. The Board observes that the medical evidence of record reflects the Veteran's long history of diagnosed schizophrenia and documents associated symptoms such as disorganized, tangential speech and thought process; persistent delusions; poor judgment; and frequent perseverating on getting an order for medical marijuana from multiple VA and other medical providers, his "right" under various laws to receive a prescription for medical marijuana, and the multiple indications for use of marijuana despite being told repeatedly over many years that VA does not currently prescribe marijuana or cannabis. His VA treatment records further reflect numerous instances in which the Veteran was asked to leave VA medical facilities because he continued to smoke marijuana, including in the presence of other veterans, after being asked to stop and being advised that use and possession of marijuana was prohibited on Federal property under Federal law. With respect to his claim for service connection for psychiatric disability, the Board notes that in a June 1978 separation report of medical history, the Veteran endorsed having depression or excessive worry and nervous trouble. A physician's summary elaborated that the Veteran had a family problem that caused him some worry and he was referred to mental health months earlier. Other than a mental status evaluation performed at the time of military discharge, however, the Board has not located any records of mental health evaluation among the Veteran's service treatment records. Moreover, a note among the Veteran's service treatment records indicates "[t]hese are copies of Service Medical Records. They were copied by VARO Publications on Friday, December 19, 1997 from the originals. Original SMR's [sic] WERE RETURNED TO MILITARY per Army letter dated 14 Nov. 97." (Emphasis in original). Based on the reference to mental health evaluation in the separation report of medical history and the fact that the service treatment records previously associated with the claims file were returned to the Army in 1997 after making copies for the file, it appears to the Board that the service treatment records currently associated with the claims file may be incomplete. The AOJ should obtain a complete, certified copy of the Veteran's service treatment records, including any records of psychiatric evaluation that may be maintained separately, and upload them as a single document to the Veteran's electronic claims file with a label or other designation denoting the origin of the records being from the Service Department or National Personnel Records Center (NPRC). The Veteran's service personnel records document that he was discharged under the provisions of Paragraph 5-31, Army Regulation 635-200 for inability to make an adequate adjustment to the military. Specifically, his records document that he was counselled on numerous occasions regarding his failure to comply with directions of supervisors and his apparent inability to report punctually to required formations and duties; he received Article 15s for failing to report for duty at the prescribed place and time, willfully disobeying a lawful order, being AWOL for nine days, and for possessing marijuana; he verbally expressed and demonstrated by his actions hostility toward the military; he continued to have problems adjusting after being moved to another section of the company per his request; and his actions showed "evidence of social and emotional maladjustment to the Army." After discharge, the Veteran sought an upgrade of his military discharge from "under honorable conditions" to "honorable." The November 1997 letter from the Army, which is referenced above and associated with the claims file, requested active duty service treatment records and records of the facts and circumstances surrounding the Veteran's discharge to evaluate his request for correction of his military records. In October 1998, the Army Board for Correction of Military Records (ABCMR) denied the Veteran's request because he failed to submit evidence that a military record was in error or unjust. The ABCMR notified him of the decision in November 1998. The October 1998 decision memorandum notes that the Veteran was arrested in May 1978 by military police "at the scene of the crime for assault, larceny of private property, and damage to private property." However, there was "no record of any disciplinary action taken." The Board has not located any record pertaining to the Veteran's arrest in May 1978 in the electronic claims file. In addition, like his service treatment records, the Board observes that his service personnel records appear to be scattered throughout the claims file rather than located in a single document and it is unclear whether the file contains a complete copy of his service personnel records. Accordingly, the AOJ should also obtain a complete, certified copy of the Veteran's service personnel records, including any arrest records because they may be pertinent to his service connection claim for an acquired psychiatric disorder, as well as his other claims. After discharge from military service, the Veteran applied for VA outpatient medical and dental treatment in February 1979. He indicated that his most recent medical care was received on November 13, 1978 at the VA Hospital in Chicago, Illinois. February 1979 VA treatment records document diagnosis and treatment for prostatitis. In other correspondence, the Veteran had reported receiving orthopedic treatment at the Lakeside VA Medical Center (VAMC) in 1978 and the claims file documents several requests by the Oakland RO to obtain such records. Unfortunately, it appears that no records dated earlier than February 1979 have been received from the Lakeside VAMC and it remains unclear to the Board whether efforts to obtain earlier records have been exhausted. Therefore, the AOJ should attempt to obtain all records from the Lakeside VAMC and related clinics dating from 1978 to August 1980, including the November 13, 1978 record of treatment from the Chicago VA Hospital. Returning to the evidence of record, the first post-service evidence of psychiatric complaints and evaluation is documented in an August 1980 discharge summary from the Palo Alto VAMC. The Veteran had presented with complaints of a week-long duration of auditory hallucinations and significant paranoid ideation. He had no known past psychiatric history and reported the onset of his first feelings of paranoia approximately four to five months prior to admission when he started a new job and began to experience feelings that co-workers were talking about him and engaging in social activities without inviting him to partake. He described other symptoms and admitted to using two to three marijuana joints every two to three days and last using a small quantity of cocaine two months earlier. He reported being discharged from the Army due to incompatibility with his commanding officer and due to his separation from his wife for physical abuse. The admitting and discharge diagnosis was atypical psychosis. In correspondence received by VA in December 1981, the Veteran detailed his drug and alcohol use during service and appeared to describe the onset of some paranoia during service. He admitted that "once at permanent duty station, [he] encountered usage of heavy drugs; barbiturates, increasingly high consumption of alcohol, as well as peer pressure to use the above-mentioned items." He also acknowledged his "frequent encounters with authority figures" and feeling "helpless and paranoid" when stationed in Berlin, West Germany, "enclosed behind the 'Iron Curtain.'" The Board emphasizes that contemporaneous statements by the Veteran conflict as to whether he first experienced symptoms of paranoia during military service or beginning around March 1980. These statements are not new. They were before the Board at the time of the May 1985 decision denying service connection for an acquired psychiatric disorder, including PTSD, schizophrenia, and adjustment disorder; and they were before the RO at the time of March 1999 and May 2007 decisions that denied reopening the claim for service connection for PTSD. Nevertheless, because there appear to be outstanding service treatment records pertinent to mental health evaluation, because there is documentation of significant behavioral problems during the Veteran's military service, and because there is some suggestion by the Veteran shortly after separation that he experienced paranoia during military service, the AOJ should carefully consider any new service treatment or personnel records and any new VA treatment records received and undertake further development, such as providing the Veteran a VA mental disorders examination, if warranted, to obtain a medical opinion as to whether any acquired psychiatric disorder, including schizophrenia, initially manifested during service or whether psychosis manifested within one year of separation from service. To ensure the record before the Board is complete, the AOJ also should obtain ongoing treatment records dating since May 2016 from the Palo Alto VAMC, or other related clinics. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Finally, the Board finds that many of the Veteran's other claims appear to be a manifestation of his psychiatric impairment because they are implausible, illogical, or wholly unsupported by the medical evidence of record. (For example, VA treatment records document the Veteran's HIV-negative status and treatment providers have informed the Veteran of such, despite his belief to the contrary). However, because the psychiatric claim requires a remand to obtain outstanding records that may substantiate the claim and may satisfactorily resolve the Veteran's disagreement, and because the outstanding records may in themselves pertain to the remaining claims on appeal, the Board is remanding the entire appeal. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (where facts underlying separate claims are "intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). Thus, adjudication of the Veteran's remaining claims must be deferred. 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. Obtain the following records: a) A certified copy of the Veteran's entire file of service treatment records, to include any mental health evaluation or treatment records that may be maintained separately; b) A certified copy of the Veteran's entire file of service personnel records, to include any May 1978 arrest record(s) by military police; c) All treatment records from the Lakeside VAMC in Chicago, Illinois dating from 1978 to August 1980, including a record of treatment at the VA Hospital from November 13, 1978; and d) All treatment records from the Palo Alto VAMC and related clinics dating since May 2016. To the extent possible, each set of documents obtained should be uploaded to the Veteran's electronic claims file as a single document and each set of documents should include some designation or label to indicate they were obtained from the Service Department, NPRC, or relevant VA facility, rather than from the Veteran. If any documents sought are unavailable, notify the Veteran has his representative, if any, of the records that were not obtained, explain the efforts taken to obtain them, and describe any further action to be taken. 2. After completion of the above and any additional development deemed necessary, the AOJ should adjudicate the issues on appeal. Adjudication of the claim for an acquired psychiatric disability, if reopened, should include consideration of whether a VA examination is warranted to obtain an opinion as to whether any current psychiatric disability had its onset during military service, is otherwise medically related to military service, or any psychosis manifested to a compensable degree within a year of separation from service. If any benefit sought on appeal remains denied, the AOJ must furnish a supplemental statement of the case (SSOC) before the claims file is returned to the Board, 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 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 (2012). _________________________________________________ K. Conner 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).