Citation Nr: 18140543 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-16 283 DATE: October 3, 2018 REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disability is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for a psychiatric disability is remanded. REASONS FOR REMAND The appellant had active duty for training (ACDUTRA) service from July 1972 to January 1973, with additional service in the Marine Corps Reserve from January 1973 to May 1977. In the July 2012 notice of disagreement, the appellant’s former attorney requested an informal conference before a Decision Review Officer (DRO) at the Regional Office (RO). On the April 2016 VA Form 9, the appellant requested a hearing before the Board. However, during a November 2016 telephone call (memorialized on a VA Form 21-0820), the appellant withdrew his request for both an informal conference and a Board hearing. In December 2017, the appellant’s former attorney submitted a Motion to withdraw from representation of the appellant, pursuant to 38 C.F.R. § 20.608. In January 2018, the Board granted this Motion. Because the appellant has not since submitted any executed form (either a VA Form 21-22 or a VA Form 21-22a) appointing a valid representative in the current case, the Board will proceed with the understanding that the appellant is appearing pro se. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disability. A claim for service connection for a heart disability was previously denied in a July 2004 rating decision on the basis that the evidence did not show that the appellant’s current heart condition began in service (or within one year of service discharge) or was related to his service. The evidence received since the July 2004 rating decision indicates that there may be pertinent treatment records in existence that have not yet been associated with the claims file. During a September 2010 telephone call (memorialized on a VA Form 21-0820), the appellant stated that he had more evidence pertaining to his claim that he would be submitting from his doctor (Dr. Ekwenchi in Marietta, Georgia); however, there are no records from this medical provider in the claims file. In addition, on a May 2016 VA Form 21-4142a (General Release for Medical Provider Information to VA), the appellant noted that he had received treatment from Emory University Hospital from January 2002 to the present; however, the records from this medical provider that are currently in the claims file are dated only from May 2003 to December 2012. Furthermore, in an April 2016 VA treatment record, it was noted that his last visit with his private primary care physician (PCP) took place in March 2016 and that his next cardiologist appointment was scheduled for May 2016. On remand, all outstanding treatment records for the appellant must be obtained and associated with the claims file. 2. Entitlement to service connection for TBI. The appellant contends that he currently has TBI as a result of his military service. The Board notes that, to date, the appellant has not alleged that he suffered a head injury in the line of duty during any period of ACDUTRA or inactive duty training (INACDUTRA). Nevertheless, a February 1977 Report of Medical History during his Reserve service indicated a history of dizziness or fainting spells (explained as follows: “Dizziness – fainting – Oct [19]76 passed out @ [at] home, no problem since”) as well as a history of eye trouble (explained as follows: “Eyes – Blurred vision[,] neg[ative] Hx [history of] head injury”). On remand, all of the appellant’s ACDUTRA and INACDUTRA dates during his Reserve service should be verified. Post-service, a May 2005 private CT scan of the appellant’s head was normal. However, as outlined above, the evidence of record indicates that there may be pertinent treatment records in existence that have not yet been associated with the claims file – including outstanding treatment records from Dr. Ekwenchi in Marietta, Georgia (identified during a September 2010 telephone call), from Emory University Hospital (identified on a May 2016 VA Form 21-4142a), and from the appellant’s private PCP (referenced in an April 2016 VA treatment record). On remand, all outstanding treatment records for the appellant must be obtained and associated with the claims file. Thereafter, if and only if any newly obtained evidence shows that the appellant currently has a TBI disability (to include at any point during the period of claim), then an examination with medical opinion should be obtained to address any relationship between such TBI disability and any disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or any injury incurred or aggravated in the line of the duty during a period of INACDUTRA, with specific consideration given to the findings noted on his February 1977 Report of Medical History (as outlined above). 3. Entitlement to service connection for a psychiatric disability. The appellant contends that he currently has a psychiatric disability as a result of his military service, to include an incident when he allegedly suffered a gunshot wound “in 1974 while on my way to my weekend [R]eserve duty” (as described by him in a June 2007 written statement). The appellant’s service personnel records (SPRs) document that he was notified in September 1976 of a proposed discharge action from the Reserve “by reason of misconduct based upon an established pattern of shirking” and that previous counseling had been given via letter for each drill period he had missed. It was thereafter documented that he received a “Medical” discharge from the Reserve in April 1977. Just prior to this discharge, a February 1977 Report of Medical History indicated a history of frequent trouble sleeping and depression or excessive worry (explained as follows: “ass[ociated] [with] bullet wound 1975”); it was also noted that he had a bullet wound in his left knee from 1976. On remand, any outstanding SPRs for the appellant should be obtained, and all of the appellant’s ACDUTRA and INACDUTRA dates during his Reserve service should be verified. Post-service, a June 2010 private treatment record noted that side effects of the appellant’s heart medication may include depression and anxiety [though it was not indicated that the appellant himself had these side effects]. Thereafter, an April 2016 VA depression screen was positive, and a May 2016 VA mental health evaluation noted the appellant’s report that he had been depressed for the past two years (“I just can’t sleep; my appetite is up and down, I get upset about everything”) and that this had been going on “since he left the service in 1974”; he was assessed with unspecified schizophrenia spectrum and other psychotic disorder and unspecified depressive disorder, as well as insomnia. As outlined above, the evidence of record also indicates that there may be pertinent treatment records in existence that have not yet been associated with the claims file – including outstanding treatment records from Dr. Ekwenchi in Marietta, Georgia (identified during a September 2010 telephone call), from Emory University Hospital (identified on a May 2016 VA Form 21-4142a), and from the appellant’s private PCP (referenced in an April 2016 VA treatment record). On remand, all outstanding treatment records for the appellant must be obtained and associated with the claims file. Thereafter, an examination with medical opinion should be obtained to address any relationship between any current psychiatric disability and any disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or any injury incurred or aggravated in the line of duty during a period of INACDUTRA, with specific consideration given to the findings noted in his SPRs and on his February 1977 Report of Medical History (as outlined above) as well as his allegations of continuity of symptomatology since service. The matters are REMANDED for the following actions: 1. Request all SPRs from official sources for the appellant’s Marine Corps Reserve service from January 1973 to May 1977, as well as verification of all ACDUTRA and INACDUTRA dates during such service. 2. Ask the appellant to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities since service, including Dr. Ekwenchi in Marietta, Georgia, Emory University Hospital (to include all records prior to May 2003 and from December 2012), and his private PCP and cardiologist (who were both referenced in an April 2016 VA treatment record). Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 3. Obtain the appellant’s VA treatment records for the period from May 2016 to the present. 4. If and only if, after all requested records have been associated with the claims file and the newly obtained evidence shows that the appellant currently has a TBI disability (to include at any point during the period of claim), then schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of such TBI disability. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed and the results reported. The examiner must provide an opinion as to whether it is at least as likely as not that any current TBI disability is related to any disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or any injury incurred or aggravated in the line of duty during a period of INACDUTRA (with specific consideration given to the findings noted on the appellant’s February 1977 Report of Medical History, as outlined above). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 5. After all requested records have been associated with the claims file, then schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of any current psychiatric disability. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed and the results reported. The examiner must provide an opinion as to whether it is at least as likely as not that any current psychiatric disability is related to any disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or any injury incurred or aggravated in the line of duty during a period of INACDUTRA (with specific consideration given to the findings noted in the appellant’s SPRs and on his February 1977 Report of Medical History, as outlined above – as well as his allegations of continuity of symptomatology since service). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel