Citation Nr: 1804314	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  10-15 591	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for bilateral inguinal hernia.

2. Entitlement to service connection for posttraumatic stress disorder (PTSD).

3. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, including anxiety, and depression, to include as secondary to service-connected bilateral inguinal hernia.

4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. M. Harris, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1983 to February 1985 in the U.S. Army.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine and July 2010 and September 2013 rating decisions issued by the RO in Detroit, Michigan.  The RO in Detroit, Michigan currently has jurisdiction of these issues.

In January 2015 the Board remanded the issues of entitlement to an increased rating for bilateral inguinal hernia, excluding the period of temporary total disability, and entitlement to service connection for a psychiatric disorder, to include anxiety and depression for additional development and adjudication.  In August 2017, the Board determined that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 477 (2009), and remanded this issue along with the bilateral inguinal hernia issue and the psychiatric disorder issue for a Board hearing.  

In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.

The issues of bilateral inguinal hernia, psychiatric disorder, to include anxiety and depression, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

In the October 2017 Travel Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and the Veteran's representative requested to withdraw the appeal for entitlement to service connection for PTSD.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal for service connection for PTSD by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his authorized representative. Id.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b).

In the October 2017 Travel Board hearing, both the Veteran and, the Veteran's representative requested to withdraw the appeal regarding entitlement to service connection for PTSD.  Therefore, there remain no allegations of error of fact or law for appellate consideration as concern the entitlement to service connection for PTSD issue.  Accordingly, the Board does not have jurisdiction over this issue and it is dismissed.


ORDER

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


REMAND

A preliminary review of the record reveals the matter is not ready for appellate disposition.

It appears the appellate record is incomplete.  At his October 2017 Travel Board hearing, the Veteran testified that he had continued to seek treatment from the VA regarding his hernia disability with residuals at VA Medical Centers in Ann Arbor and Grand Rapids, Michigan, until he switched to a private treatment provider, in Grand Rapids, Michigan.  The Veteran also testified that he underwent treatment for mental health at the Wyoming, Michigan VA Health Care Center, and that his last appointment was at least a year prior to his October 2017 Travel Board hearing.  

Since his hearing, the Veteran, through his Representative, submitted a two page prescription for morphine sulfate, typically used to alleviate severe ongoing pain, with handwritten notes, two Buddy statements from the Veteran's spouse and son, and a Disability Benefits Questionnaire (DBQ) for his psychiatric disorder and his hernia disability.  However, a thorough review of the file indicated that no ongoing VA treatment records had been associated with the Veteran's file since January 2016, and, that no private treatment records had been associated with the Veteran's file.

In light of the Veteran's contentions and the evidence of record, both the VA and private treatment records must be obtained. 38 C.F.R. § 3.159 (2017).  The Board will remand to obtain these records. 

The Board also notes that in the October 2017 Travel Board hearing the Veteran stated that he is in receipt of disability benefits from the Social Security Administration (SSA) since 2005.  While not clear as to the basis of the award, because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  

Consequently, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim.  See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA).

Pursuant to a January 2015 Board remand, the Veteran last underwent a VA examination to assess the severity of his service-connected bilateral inguinal hernia in October 2015.  Since that time, evidence has been added to the record, which suggests that the Veteran's disability may have worsened.  Specifically, in his October 2017 Travel Board hearing, the Veteran testified that his disability and residuals has "worsened" and increased in severity due to symptoms such as severe residual pain caused by migration of mesh implants used to treat his hernia disability, and his diagnosis as inoperable for treatment of this pain by VA treatment providers.  See October 2017 Hearing tr. at page 6.  Since that time, the Veteran submitted a DBQ for his hernia disability dated December 2017.  However, the DBQ does not contain sufficient findings on which to properly assess the severity of the symptoms associated with the hernia.  Therefore, he should be afforded a new VA examination to determine the current nature and severity of this service-connected disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

In the August 2017 remand, the Veteran had argued that his psychiatric disorder, to include anxiety and depression is caused by his service-connected bilateral inguinal hernia disability.  In his October 2017 hearing, he indicated that he could obtain a medical opinion showing a relationship between his anxiety and depression and his hernia disability.  Since that time, the Veteran obtained a Mental Disorders (other than PTSD and Eating Disorders) DBQ dated December 2017 filled out by his treatment provider at the Wyoming, Michigan VA Health Care Center.  This DBQ is of record and reflects the Veteran's diagnoses with anxiety and depression.  It also listed that the Veteran suffered from chronic pain.  However, the examiner did not provide an etiology opinion.  The record does not otherwise contain an opinion as to the relationship between the Veteran's depression and anxiety and his service connected hernia disability.  This opinion should be obtained.

The matter of entitlement to a TDIU rating is inextricably intertwined with the increased rating claims, and consideration of that matter must be deferred pending resolution of the increased rating issues. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1. Ask the Veteran to provide a release for relevant records of treatment from Dr. Michael Specter, and to identify the names, dates of treatment, and locations (ie. addresses and contact information) for any other private treatments used to diagnose and treat the Veteran; and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal.  For any identified treatment for which he provides an appropriate release, the identified records must be obtained.  Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file.

2. Obtain any outstanding records pertaining to any relevant VA treatment records not already associated with the file.  Specifically, efforts should be made to obtain and associate with the file any treatment records dated from January 2016 to present.  All attempts to fulfill this development must be documented in the claim file.  If the search for any such records yields negative results, that fact should be clearly noted and the Veteran must be informed in writing.  All information, which is not duplicative of evidence already received, should be associated with the electronic record.  If any records sought are unavailable, the reason for their unavailability must be noted in the record.

2. Ask the Social Security Administration (SSA) to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA benefits, to include any medical records considered in making a decision on that application.  Any new or additional (i.e., non-duplicative) evidence received should be associated with the claim file.

3. After completion of the development in (1) and (2) above, schedule the Veteran to undergo VA examinations to determine the current level of severity of his service connected bilateral inguinal hernia.  The claim file must be made available to the examiner(s) for their review and the report must indicate that the record was reviewed.  All indicated tests and studies should be completed.

4. After completion of the development in (1) and (2) above, schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of his claimed psychiatric disorder, to include anxiety and depression.  The claim file must be made available to the examiner(s) for their review and the report must indicate that the record was reviewed.  All indicated tests and studies should be completed.

The examiner should provide an opinion as to whether any diagnosed psychiatric disability, to include anxiety and depression,  at least as likely as not (50 percent or greater probability) had its onset during active service or is in any way related to his active duty service.

The examiner should also provide an opinion as to whether anxiety and depression, or any other diagnosed psychiatric disability, were caused by or aggravated beyond its natural progression by the service connected bilateral inguinal hernia disability.

A complete rationale for all opinions rendered must be provided.  The examiner is reminded that a reasoning based on the absence of a diagnosis in service will be deemed inadequate.

In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements, his spouse's lay statement, and his son's lay statement regarding the progression of the disorder.  

If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

5. The AOJ should conduct any other development deemed appropriate, and ensure that the VA examination report(s) and opinion(s) comply with the Board's remand instructions.

If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedures.  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).

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. §§ 5109B, 7112 (2012).




______________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  The 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).

Department of Veterans Affairs