Citation Nr: 1801684	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-16 629	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a back disorder.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for intestinal problems.

4.  Entitlement to service connection for anemia.

5.  Entitlement to service connection for a neck disorder.

6.  Entitlement to service connection for an acquired psychiatric disability.

7.  Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to acquired psychiatric disability.

8.  Entitlement to service connection for migraines, to include as due to acquired psychiatric disability.


REPRESENTATION

Veteran represented by:	Mary M. Long, Attorney


WITNESSES AT HEARING ON APPEAL

Veteran and her parents


ATTORNEY FOR THE BOARD

T. Carter, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from March 1980 to January 1985.

This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2013 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota and Muskogee, Oklahoma, respectively.  During the course of the appeal, the claims file was transferred to the RO in Muskogee, Oklahoma.

In May 2017, the Veteran and her parents testified at a video conference hearing before the undersigned.  The record was held open for 60 days.

Since the case was certified to the Board in April 2016 and May 2017 and the May 2017 Board hearing, additional evidence relevant to the issues on appeal has been obtained and associated with the record, which the Veteran waived initial RO review in an August 2017 VA Form 21-4138.

The issues of entitlement to service connection for GERD and migraines, both to include as due to acquired psychiatric disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1.  At the May 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of entitlement to service connection for a back disorder, hypertension, intestinal problems, and anemia.

2.  A current neck disorder, diagnosed as cervical strain, is causally related to an injury during active service.

3.  A current acquired psychiatric disability, diagnosed as depression, severe bipolar I with mixed features, and generalized anxiety disorder, is causally related to an occurrence during active service.






CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for a back disorder have been met.  38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 

2.  The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for hypertension have been met.  38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 

3.  The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for intestinal problems have been met.  38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 

4.  The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for anemia have been met.  38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 

5.  With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a neck disorder have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

6.  With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for an acquired psychiatric disability have been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claims Withdrawn

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  See 38 U.S.C. § 7105(d)(5).  A substantive appeal may be withdrawn at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing.  38 C.F.R. § 20.204.  In this case, the issues of entitlement to service connection for a back disorder, hypertension, intestinal problems, and anemia were certified to the Board in March 2017, as noted in a VA Form 8.  Prior to the promulgation of a decision in the appeal, the Veteran withdrew these issues for appellate consideration at the May 2017 Board hearing.  As she has withdrawn her appeal for these issues, there remains no allegation of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal on these issues, and they are dismissed.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C. § 1131.

Neck Disorder

Service treatment records show the Veteran was treated in service after a motor vehicle accident in November 1983.

During the appeal period, the Veteran was diagnosed with cervical strain, as noted in a July 2017 private independent medical examination report.

At the May 2017 Board hearing, the Veteran reported that, although she was not treated for her neck at the time of the motor vehicle accident, she has since experienced problems with her neck with onset of pain two days after the accident.  Following the July 2017 private independent medical examination and accurate factual history of the Veteran's reported in-service injury, the private examiner concluded "it is more likely than not that [the Veteran] injured her neck in the motor vehicle accident."

For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for a neck disorder on a direct basis.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 

Acquired Psychiatric Disability

Service treatment records show the Veteran was treated in service for adjustment disorder with depressed mood and had a suicide attempt in November 1984.  The Veteran also reported "yes" to having or having had a history of depression and excessive worry in her December 1984 Report of Medical History.

During the appeal period, the Veteran was diagnosed with depression and bipolar disorder, as noted in VA treatment records, as well as severe bipolar I with mixed features and generalized anxiety disorder, as noted in a July 2017 private case evaluation report.

At the May 2017 Board hearing, the Veteran reported that her nervousness and stress increased during service after an assault incident in South Carolina with her supervisor prior to re-enlistment and a second assault incident while deployed in Germany which prompted her subsequent suicide attempt in 1984.  The Veteran's account of her in-service assaults is credible.  She further noted attempting suicide seven times during and since service and VA treatment records document her history of multiple suicide attempts.  Following the July 2017 private case evaluation and accurate factual history of the Veteran's reported in-service occurrences, the private examiner concluded the Veteran's "mis-diagnosis during service and lack of treatment by the Air Force led to her disabling depressive condition and that her current condition is a consequence of her service."

For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for an acquired psychiatric disability on a direct basis.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 


ORDER

The appeal for entitlement to service connection for a back disorder is dismissed.

The appeal for entitlement to service connection for hypertension is dismissed.

The appeal for entitlement to service connection for intestinal problems is dismissed.

The appeal for entitlement to service connection for anemia is dismissed.

Service connection for a neck disorder is granted.

Service connection for an acquired psychiatric disability is granted.


REMAND

A remand is needed for the issues of entitlement to service connection for migraines and GERD to obtain additional VA medical opinions.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.310 (2017).  At the May 2017 Board hearing, the Veteran asserts that these claimed disorders are secondary to her, now service-connected, acquired psychiatric disability.  After review of the record, the Board finds these issues have not been addressed on a secondary basis regarding causation or aggravation.  When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Accordingly, the case is REMANDED for the following actions:

1.  Return the Veteran's claims file to the examiner who conducted the March 2013 VA DBQ examinations for esophageal conditions (including GERD) and headaches (including migraine headaches) so supplemental opinions may be provided.  If that examiner is no longer available provide the Veteran's claims file to a similarly qualified clinician.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt of these materials in any reports generated.  A new examination is only required if deemed necessary by the examiner.

The examiner must opine as to the following:

a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD is proximately due to or the result of her service-connected psychiatric disorder.

b. Whether it is at least as likely as not that the Veteran's GERD aggravated beyond its natural progression by her service-connected psychiatric disorder.

The examiner must also opine as to the following:

a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraines are proximately due to or the result of her service-connected psychiatric disorder.

b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraines aggravated beyond its natural progression by her service-connected psychiatric disorder.

The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 

2.  Then, the RO should review the medical opinions to ensure that the requested information was provided.  If any opinion is deficient in any manner, the AOJ must implement corrective procedures.

3.  Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

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. §§ 5109B, 7112 (2012).



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs