Citation Nr: 1802055 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-30 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for hypertension (claimed as high blood pressure). 3. Entitlement to service connection for a heart/circulatory disability. 4. Entitlement to service connection for a lung/breathing disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1973, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has also claimed service connection for adjustment disorder and depression which were adjudicated by the RO in a May 2015 rating decision, separate and apart from his PTSD claim. Although the Veteran failed to timely appeal that decision, given that there are current diagnoses of PTSD and depression, the Veteran's claim has been expanded to encompass service connection for an acquired psychiatric disorder, to include PTSD and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran perfected appeals for claims for service connection for hearing loss and tinnitus, and non-service connected pension. In a May 2014 rating decision, the RO granted non-service connected pension; and in a June 2017 rating decision, the RO granted service connection for hearing loss and tinnitus. As this represents a full grant of the benefits sought, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluations or effective dates assigned. See 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that additional development is required prior to adjudication of the Veteran's claims. In this regard, the Board notes that the Veteran was imprisoned during the pendency of his appeal and received medical treatment from at least three different locations, to include a federal prison in Talladega, Alabama; South Carolina; and Yazoo, Mississippi as noted on his August 2009 authorization and release form. He was released from prison in January 2014. However, to date, the RO has yet to request the Veteran's prison medical records. As such, those records should be requested upon remand. The Veteran has contended that all of his health problems have been attributed to either drug abuse or exposure to herbicides during service. The Board recognizes the Veteran's exposure to herbicides. Regarding the Veteran's service connection claim for a heart/circulatory disability, the May 2015 VA examiner noted the Veteran with coronary artery disease as of August 2013, but stated that there was no objective evidence in the Veteran's claims file to support such diagnosis listed in the problem list and that sestambi performed later indicated no evidence of any disorder of blood flow to ventricles. Thereafter, per a June 2017 cardiology pre-procedure assessment, the indications were ischemic heart disease, chest pain, heart failure, and cardiomyopathy. The cardiologist also noted cardiac risk factors as diabetes, diabetes therapy, hypertension, former tobacco use, former alcohol use, and former illicit drug use. The cardiologist noted a planned procedure of left heart catheterization, coronary angiography, right heart catheterization, PCI, and femoral angiography. Also as of June 2017, the Veteran's problem list included coronary arteriosclerosis and cardiac chest pain. Accordingly, the Board finds that the Veteran should be afforded a new VA heart examination to determine the nature and etiology of his current heart disability. As to the Veteran's service connection claim for a lung/breathing disability, the Board notes several occasions that the Veteran was treated during service for upper respiratory infection (February 1972, April 1972, January 1973, March 1973); influenza (February 1972); chest cold (October 1972); shortness of breath (October 1972, January 1973, March 1973); and bronchitis (March 1973). Moreover, per the May 2015 VA heart examination, under the METs Testing section, the examiner noted the Veteran with chronic obstructive pulmonary disease (COPD), which causes most of his dyspnea (shortness of breath). Given that the Veteran has not been afforded a VA respiratory examination, the Board finds that upon remand, he should be afforded VA respiratory/lung examination. Regarding the Veteran's claim for hypertension, the May 2015 VA examiner concluded that the Veteran's hypertension was not caused by or the result of his service-connected diabetes mellitus. As his reasoning, the examiner stated that there was no evidence of any renal disease related to diabetes mellitus that could be a cause of hypertension. However, it does not appear that the examiner addressed service connection on a direct basis and even if the examiner found that hypertension was in essence not caused by the Veteran's service-connected diabetes mellitus, he did not provide an opinion addressing whether such condition was aggravated by the Veteran's service-connected diabetes mellitus. Given the above, the Board finds that an addendum medical opinion should be obtained upon remand. Regarding the Veteran's claim for PTSD, the Board notes that in August 2010, the Veteran was initially scheduled for VA psychiatric examination. However, as he was incarcerated at that time, he was unable to attend the VA examination and he has yet to undergo a VA psychiatric examination. Further, VA treatment records note a diagnosis of severe recurrent depression and PTSD. Given that the Veteran has been released from prison and has current diagnoses of PTSD and depression, he should be scheduled for a VA psychiatric examination to determine the etiology of his psychiatric disorders. Updated VA treatment records should also be obtained upon remand. 38 U.S.C. § 5103A (2012). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify and if possible, provide the address of, all locations in which he was imprisoned and received medical treatment for his psychiatric disorders, hypertension, heart/circulatory disability, and lung/breathing disability. After securing any necessary release, the AOJ should request any relevant records identified. In addition, obtain and associate with the record VA treatment records dated since June 2017. If no such records exist, the claims file should be annotated to reflect such and the Veteran and his representative notified of such. 2. After the above is completed to the extent possible, schedule the Veteran for a VA lung/respiratory examination to determine whether the current lung disability, to include COPD is related to service. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be clearly set forth in detail. After review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lung disease arose in service or is etiologically related to his military service, to include his exposure to herbicides (Agent Orange) therein. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. While the examiner is free to cite to studies by the National Institute of Health in rendering the opinion concerning COPD or other lung disease and herbicide exposure, the examiner's rationale should not rely solely on the fact that VA regulations do not recognize lung disease (other than cancer) as being due to herbicide exposure. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Schedule the Veteran for a VA heart examination to determine the nature and etiology of any current heart disability. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be clearly set forth in detail. After review of the claims file and examination of the Veteran, the examiner should provide a diagnosis of all heart disabilities present during the appeal period, to include whether the Veteran has had ischemic heart disease. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's heart disease arose in service or is etiologically related to his military service, to include his exposure to herbicides (Agent Orange) therein. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. Schedule the Veteran for VA psychiatric examination. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All tests and studies deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify all current psychiatric diagnoses for the Veteran. Then provide an opinion for the following questions: a. Does the Veteran meet the criteria for a diagnosis of PTSD using the DSM-IV or DSM-V criteria? If so, is it at least as likely as not (50 percent probability or greater) that the Veteran's PTSD had its onset during service, or is otherwise related to his active service? If the Veteran fails to meet the criteria for a diagnosis of PTSD under DSM-IV or DSM-V criteria, the VA examiner should specifically identify which portion(s) of the criteria the Veteran failed to satisfy. b. Regarding any other diagnosed psychiatric disorder, is it at least as likely as not (50 percent probability or greater) that the psychiatric disorder arose during service or within one year following separation from service, or is otherwise etiologically related to active service? A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Send the claims file to an appropriate VA examiner to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's hypertension. The entire claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. Following review of the claims file, the examiner should provide an opinion as to the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension arose in service or is otherwise etiologically related to his military service, to include his exposure to herbicides (Agent Orange) therein. The examiner should explain the reasons for the conclusion reached. While the examiner is free to cite to studies by the National Institute of Health in rendering the opinion concerning hypertension and herbicide exposure, the examiner's rationale should not rely solely on the fact that VA regulations do not recognize hypertension as being due to herbicide exposure. b. If not related to service, is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension was caused by a service-connected condition, to include diabetes mellitus? Please explain why or why not. c. If the Veteran's hypertension is not caused by a service-connected condition, to include to include diabetes mellitus, is it at least as likely as not (50 percent probability or greater) that the hypertensive disorder has been permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected condition? A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 6. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).