Citation Nr: 1803196 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-30 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for a mental illness/psychosis for the purpose of establishing eligibility to treatment. 3. Entitlement to service connection for hypertension, to include as secondary to a psychiatric disorder. 4. Entitlement to service connection for low libido, to include as secondary to hypertension. 5. Entitlement to service connection for residuals of a cerebrovascular accident (CVA), to include as secondary to hypertension. 6. Entitlement to service connection for shortness of breath. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1966 to February 1968 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran presented testimony before the undersigned Veterans Law Judge in September 2017. A transcript of this hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains complete VA treatment records up through April 2016. Otherwise, LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND For all of the claims on appeal, remand is required to obtain current VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, records from a VA medical center. 38 C.F.R. § 3.159(c)(2). During the September 2017 hearing, it was noted that the Veteran had sought treatment with VA for various claimed disorders more recently than April 2016. Specifically, the Veteran testified that he had undergone recent respiratory and psychiatric testing with VA. The most recent VA records associated with the claims file are dated in April 2016. Because there are outstanding relevant VA treatment records, remand is required. Regarding the claims for service connection for hypertension and a psychiatric disorder, remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). At the 2017 Board hearing, the Veteran reported psychiatric treatment from a Dr. F in Montgomery, Alabama. He also reported treatment for hypertension in Florida, by Drs. G. and P. No attempts to obtain these records have been made. This must be done on remand. Regarding the claim of entitlement to service connection for a psychiatric disorder, remand is also required for an adequate examination. VA provided an examination for this claim in November 2010. The examiner found no symptoms pertaining to a psychiatric disorder and thus found there was no diagnosis. During the September 2017 hearing, the Veteran testified that he received psychiatric treatment through VA. An April 2015 VA primary care behavioral health initial evaluation shows diagnostic impressions of unspecified depressive disorder and PTSD based on psychiatric testing. The Veteran discussed in-service stressors relating to his service in the Republic of Vietnam. These VA treatment records suggest that the Veteran may have symptoms of an underlying mental illness. Therefore, a new examination must be conducted. Regarding the claim of entitlement to service connection for a mental illness or psychosis for treatment purposes, the issue is deferred pending the development on remand. Regarding the claim of entitlement to service connection for hypertension, remand is required to obtain an examination. An examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology). Here, there is a diagnosis of hypertension. Additionally, the Veteran served in Vietnam. 38 C.F.R. § 3.307(a) (2017). Therefore, it is presumed that he was exposed to herbicides, including Agent Orange. The National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 concluded that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension. See Institute of Medicine of the National Academies, Veterans and Agent Orange: Update 2010 694 (2011), available at http://www.iom.edu/reports/2011/Veterans-and-agent-orange-update-2010.aspx; see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 (Aug. 10, 2012) (noting that NAS in 2006 and 2008 previously elevated hypertension to "Limited or Suggestive Evidence" category). In light of the low threshold set by McLendon, the Board finds that the AOJ should obtain an opinion to determine if the Veteran's hypertension is related to his exposure to herbicides during active duty. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The claim for service connection for hypertension is also inextricably intertwined with the claim for a psychiatric disorder as the Veteran testified during the September 2017 hearing that stress led to his eventual diagnosis of hypertension. VA treatment records document a present diagnosis. To the extent the Veteran is claiming that hypertension is related to stress, or to a psychiatric disorder, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Finally, the claims of entitlement to service connection for low libido and residuals of a CVA are inextricably intertwined with the claim of entitlement to service connection for hypertension because the Veteran claims they are secondarily related to this condition. See Harris v. Derwinski, 1 Vet. App. 180. 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. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. In particular VA treatment records from April 2016 onward must be obtained. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. The RO must request authorizations for any relevant records, but specifically including Dr. F in Montgomery, Alabama and Drs. G. and P. in Florida. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of his claimed psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. The examiner must determine what psychiatric disorders the Veteran has or has had during the instant claim. The examiner must discuss VA treatment records documenting diagnoses of PTSD and a depressive disorder. b. If PTSD is diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is etiologically related to any verified in-service stressor or based on a fear of hostile military or terrorist activity during service, and whether his symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. c. For any diagnosed psychiatric disorder other than PTSD, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder was had onset in or is otherwise related to the Veteran's military service. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension had its onset during, or is otherwise related to, active service, to include as due to Agent Orange exposure, despite the fact that hypertension is not a presumptive condition. The examiner must address The National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 discussed in the Federal Register. b. If a psychiatric disorder is diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension was caused by the psychiatric disorder. c. If a psychiatric disorder is diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension has been aggravated by the psychiatric disorder. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ K. MILLIKAN 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) (2017).