Citation Nr: 1803229 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 085A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including dissociative amnesia, depression and anxiety disorder. 2. Entitlement to service connection for a visual problems. 3. Entitlement to service connection for a non-epileptic seizures. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty in May 1971 to May 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a video-conference hearing. A transcript of the hearing is of record. Following the hearing the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he currently suffers from a neuropsychiatric disorder, diagnosed as dissociative amnesia due to service. He claims the condition had onset in service and is associated with multiple stressors he endured during active duty, to include witnessing fellow service members killing each other, witnessing at least 15 service members attempt to commit suicide in boot camp, being attacked by another marine with a knife, being hospitalized and put in a straightjacket while stationed in the Philippines, and being repeatedly beaten up, sleep deprived and tortured by his superiors, including his drill sergeants. Reportedly, his sister contacted the Red Cross and an investigation into the claimed abuses was conducted. The service records fail to substantiate the Veteran's alleged in-service stressors. A Report of Medical History in March 1971 noted a history of head injury, depression and excessive worry, along with frequent trouble sleeping. The examiner noted a history of head injury in a car accident in 1970. He was found to be qualified for active duty. In October 1972, while stationed in the Philippines, he was hospitalized for probable viral syndrome, possible dengue fever. In April 1973, he reported to sickbay to have a forehead contusion evaluated from a motor vehicle accident the prior day. He had no loss of consciousness and only slight dizziness and post-traumatic headache as residual symptoms. On separation from service in April 1973 the Veteran's neurological system and eyes were evaluated as normal, and his vision was 20/20. He was also found to be psychiatrically normal. After service, a July 1975 treatment note recorded an assessment of probable anxiety reaction. In April 1980 it was noted that the Veteran had been suffering anxiety and depression since service and on one occasion he was seen by a psychiatrist, but he did not receive any psychiatric treatment. A July 2010 clinical treatment note showed diagnoses of non-epileptic seizures, dissociative disorder, depression and anxiety. On VA examination in February 2014, the Veteran reported a history of feeling stressed during service due to being threatened, beaten and yelled at. The examiner noted a diagnosis of traumatic brain injury in December 1970, with treatment in May 1971 for a tension headache associated with his pre-enlistment concussion. The examiner noted that the Veteran appeared to have developed symptoms of generalized anxiety disorder (muscle tension, fatigue, stomach distress, transient mood dysphoria-depression, impatience, insomnia, pervasive sense of dread, and anxious thinking about past, current and anticipated future stressors). In October 1972, he was briefly hospitalized for symptoms of an acute viral syndrome, which quickly resolved, without sequelae. In April 1973, he reported to sickbay to have a forehead contusion evaluated from a motor vehicle accident the prior day. He had no loss of consciousness and only slight dizziness and post-traumatic headache as residual symptoms. He was neurologically evaluated as normal. The examiner opined that the claimed condition was less likely than not incurred in, or caused by, the claimed in service injury, event or illness, because although the Veteran had a documented pre-enlistment head injury with concussion, at the time of enlistment the symptoms had essentially resolved and he was deemed to be fully fit for service induction. The examiner indicated that the Veteran's post service discharge symptoms, claimed as dissociative disorder, depression, seizures with blackouts, memory problems and visual problems, were more likely related to a chronic generalized anxiety disorder. As such, the Veteran's pre-service head injury was not permanently worsened by active duty service, nor were his claimed symptoms caused by an April 1973 motor vehicle accident. The examiner failed to address whether the Veteran's currently diagnosed psychiatric disorder had onset in service. In support of his claim, in November 2017 the Veteran submitted a medical statement from his treating osteopathic physician who reported having reviewed the Veteran's Marine Corps and VA records, and noted the Veteran's long history of dissociative disorder and depression with treatment since 1973. The physician opined that the Veteran's dissociative disorder and depression were related to service, as evinced by the Red Cross inquiries into his medical and physical treatment in boot camp when the Veteran was tortured and witnessed multiple suicides, as well as his hospitalization in the Philippines during service. However, the records upon which the physician appears to have relied upon in rendering the opinion, the Red Cross' investigation records, have not been associated with the claims file. Moreover, there is no evidence of psychiatric treatment since 1973. Additionally, it is unclear what nexus, if any, exists between the Veteran's hospitalization for treatment of a probable viral infection in service and his currently diagnosed psychiatric disorder. The Board finds that the treating osteopathic physician's favorable opinion did not provide an adequate rationale as it provides no explanation for the conclusions reached. An examiner's mere conclusion statement is insufficient to allow the Board to make an informed decision as to the weight to assign to the medical statement. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Nonetheless, the Board finds that this private opinion, along with other evidence of record as outlined above, provides enough favorable medical evidence to satisfy the relatively low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), as to when VA is required to assist the Veteran by affording him an examination in effort to properly develop his claim. In addition, the Board finds that a remand is necessary in order to obtain outstanding Social Security Administration (SSA) records. In this regard, the Veteran has reported, and his treating osteopathic physician confirmed, that the Veteran is in receipt of disability benefits from SSA due to his psychiatric disorders. As the SSA's decision and the records upon which the agency based its determination may be relevant to VA's adjudication of the Veteran's pending claim, VA is obliged to attempt to obtain and consider those records. 38 U.S.C. § 5103A (c)(3) (West 2012); 38 C.F.R. § 3.159 (c)(2) (2017). As such, a remand is necessary in order to obtain all medical records concerning the Veteran's claim for SSA disability benefits. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by the SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from the SSA). On remand the Veteran should be given an opportunity to identify and authorize release of any records relevant to the claims on appeal that have not been obtained, to include records from an investigation conducted by the Red Cross concerning abusive behavior against the Veteran during service. On remand, relevant medical records should also be requested. Concerning the claims for service connection for visual problems and non-epileptic seizures, these are claimed, at least in part, as secondary to the psychiatric disability being remanded for additional development. These claims are therefore inextricably intertwined with the claim for an acquired psychiatric disorder, and their adjudication must be deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration for the purpose of obtaining all additional medical records relied upon and any final decision made in conjunction with the Veteran's claim disability benefits. All such available documents should be associated with the claims folder. Any negative responses must be documented 2. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for a psychiatric disorder, neurological disorder, seizures and vision problems, and complete and return an appropriate authorization form for each treatment provider identified. After obtaining the completed release form, request all identified pertinent medical records. All development efforts should be associated with the claims file. If the requested records cannot be obtained, the Veteran should be notified of such. 3. Contact the Red Cross and attempt to obtain records, if any, from an investigation concerning abusive behavior against the Veteran during service. The AOJ should also contact the Veteran and ask him to submit any such records in his possession. If no records are available, the reasons for unavailability should be noted in the record. 4. Obtain all relevant outstanding VA treatment records. 5. After the development requested above has been completed, schedule the Veteran for a VA psychiatric disability examination to address his claim for service connection for an acquired psychiatric disorder, to include dissociative amnesia, depression and anxiety disorder. The claims file must be provided to the examiner for review in conjunction with the examination. After review of the file and examination of the Veteran, the examiner should offer an opinion as to the following: a) The examiner should identify all psychiatric disorders found to be present. b) Determine whether it is at least as likely as not (a probability of 50 percent or greater) that any current psychiatric disorder had onset during service, had its onset in the year immediately following discharge from service in May 1973, or is otherwise the result of a disease or injury in service. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The examiner shall attempt to reconcile the opinion with any other medical opinions of record. All opinions expressed must be accompanied by a complete rationale. 6. After the actions above have been completed, and after conducting any additional development deemed necessary, readjudicate the Veteran's claims on appeal, to include the claims for entitlement to service connection for visual problems and non-epileptic seizures. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. The appellant 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). 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). _________________________________________________ Cynthia M. Bruce 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).