Citation Nr: 1801596 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depression or posttraumatic stress disorder (PTSD), to include as secondary to electromagnetic radiation (non-ionizing) exposure. 2. Entitlement to service connection for psychosis/mental illness for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C.§ 1702. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability. 5. Entitlement to an initial compensable rating for rhinitis. 6. Entitlement to an initial compensable rating for sinusitis. 7. Entitlement to a total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Air Force from June 2003 to September 2003, and from December 2005 to June 2006. He had additional service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) from December 2011 (psychiatric) and April 2015 (remaining) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that the RO has addressed the Veteran's psychiatric claims as secondary to ionizing radiation in the rating decision and Statement of the Case (SOC); however, the Veteran's statement regarding his radiation exposure indicates that he believes he was exposed to radiation via his work with an AN/TSP-75 radar, which producing electromagnetic radiation (non-ionizing). The claim has been reworded to reflect that the radiation was non-ionizing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Psychiatric The Veteran contends that he developed an acquired psychiatric disorder as a result of his service, to include depression, anxiety, and/or PTSD. He also contends that his psychiatric disorder(s) is a result of his exposure to non-ionizing radiation. The Veteran was afforded a VA examination in November 2011. In a November 2017 brief, the Veteran's representative argued that the November 2011 VA examination was inadequate, stating that the negative medical opinion was "totally disjointed and confusing and makes no sense." Turning to the November 2011 VA examination, the examiner diagnosed major depression, recurrent under DSM-IV criteria. The Veteran reported two stressors for his PTSD diagnosis during the examination. They are as follows: He was exposed to the sounds of mortar attacks on a daily basis, and he was accused of sabotaging the radar equipment he worked with in Iraq. The examiner indicated that neither stressor met criterion A for a diagnosis of PTSD because "the contention of whether or not the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity is not supportive by today's evaluation." However, at the next section, the examiner selected that the veteran experienced, witness or was confronted with an event that involved actual or threatened death or serious injury, which met Criterion A for PTSD. As the veteran's representative indicated, this explanation is confusing, and does not appear to explain why the stressors did not meet criterion A, and, as such, the examination is not adequate. Regarding whether the Veteran's diagnosed major depression was related to his service, the examiner provided a negative medical opinion. She noted that there was no evidence of psychiatric complaint or treatment in service or prior to service. The Veteran first sought treatment in 2010 and identified stressors of medical condition, lack of employment, lack of support systems, and homelessness. She noted that the veteran referred having "some traumatic experiences during his military service, he does not meet the stressor criterion of response." He did not meet the full diagnostic criteria for a diagnosis of PTSD. She reiterated that he had a diagnosis of major depression. The medical opinion failed to adequately address whether the Veteran's subsequent depression diagnosis was related to his service. Notably, the examiner did not address the Veteran's in-service psychiatric complaints. On remand, an additional VA psychiatric examination is warranted, to include evaluation under the DSM-V. Available service treatment records include a May 2006 record where the Veteran endorsed several items on the PTSD checklist. He had an overall score of 41. However, the record does not contain any diagnoses. A June 2007 post-deployment document filled out by the Veteran included his indication that he had little interest or pleasure in doing things and he was feeling down, depressed or hopeless. He also reported nightmares, intrusive thoughts, being easily startled, and feeling detached and numb. It included the notation of "f/u with Life Skills for PTSD." Again, no diagnosis was provided. The Board notes that it appears that some active service treatment and National Guard service treatment records appear to be missing as there are limited examinations and records, and the Board did not locate a discharge examination. On remand, the RO should attempt to obtain any missing records. Regarding the Veteran's claim for service connection for treatment purposes, under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service for the purposes of receiving VA medical treatment. (Emphasis added) Under 38 U.S.C. § 1702 (b), any veteran of the Persian Gulf War who develops an active mental illness shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed within two years after discharge or release from active service and before the end of the two-year period beginning on the last day of the Persian Gulf War, for the purposes of receiving VA medical treatment. Essentially, here, the Veteran needs to supply evidence that he developed psychosis or an active mental illness within two years after discharge or release from active service. To the extent that he was provided notice of the requirements for fulfilling a claim of entitlement to service connection, the VCAA notice did not inform him of the information needed to fulfill a claim for service connection for treatment purposes. On remand, this information should be sent to the Veteran. Additionally, the VA psychiatric examiner will be asked whether the evidence or record shows that the Veteran developed a psychosis or active mental illness during active service or within two years of discharge/release. Under 38 C.F.R. § 3.384, the term psychosis is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. Remaining issues on appeal In April 2015, the RO denied entitlement to a TDIU. In a second April 2015 rating decision, the RO granted entitlement to service connection for a lumbar spine disability, tinnitus, sinusitis, and rhinitis and provided initial ratings. The second April 2015 rating decision denied entitlement to service connection for hearing loss. In June 2015, the Veteran submitted a timely notice of disagreement (NOD) with his ratings for rhinitis, sinusitis, lumbar spine disability, service connection for hearing loss, and entitlement to a TDIU. A statement of the case has not been issued by the RO, and the claim must be remanded. See Manlicon v. West, 12 Vet. App. 238 (1999). After the RO has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice regarding the requirements to fulfill a claim of entitlement to service connection for a mental illness for treatment purposes under 38 U.S.C. § 1702. 2. Obtain any outstanding active and National Guard service treatment records. Notably, the Board was unable to locate a discharge examination for the Veteran's periods of active service. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for a VA psychiatric evaluation. After a review of the record, and interview and evaluation of the Veteran, the examiner should provide the following: a. List all current psychiatric disorders under the DSM-V. ("Current" for VA purposes includes any diagnosis from September 2010 to the present). b. For each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50/50 probability or greater) that the disorder began during or was caused by his active service. In providing this opinion, please note the Veteran's complaints of psychiatric symptoms in May 2006 and June 2007. c. For each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50/50 probability or greater) that the disorder is due to exposure to non-ionizing radiation (electromagnetic radiation). The Veteran has claimed exposure to non-ionizing radiation from his service near AN/TPS-75 air search radar. d. Provide an opinion as to whether the Veteran had a psychosis or active mental illness during service or within 2 years of discharge from service. Provide a full explanation for each opinion expressed. 4. Issue a statement of the case (SOC) regarding the Veteran's claims of entitlement to service connection for hearing loss, increased ratings for a lumbar spine disability, rhinitis, sinusitis, and entitlement to TDIU. The Veteran should be informed that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning these claims. 5. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. The Veteran 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). _________________________________________________ KRISTI L. GUNN 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).