Citation Nr: 18154794 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-11 641 DATE: December 4, 2018 REMANDED The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The claim of entitlement to service connection for acute respiratory disorder is remanded. The claim of entitlement to service connection for esophageal cancer is remanded. The claim of entitlement to service connection for diabetes mellitus, type II, is remanded. The claim of entitlement to service connection for kidney failure is remanded. The claim of entitlement to service connection for Human Immunodeficiency Virus (HIV) is remanded. The claim of entitlement to service connection for narcolepsy is remanded. The claim of entitlement to a rating greater than 100 percent for schizophrenia, paranoid type. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REASONS FOR REMAND The Veteran served on active duty from March 1969 to October 1971. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2012 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, inter alia, denied the claims of service connection for PTSD, HIV, narcolepsy, diabetes mellitus, esophageal cancer, kidney failure, and acute respiratory disorder. The Veteran filed a notice of disagreement (NOD) in September 2012. The RO issued a statement of the case (SOC) in March 2015 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. In December 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. During his Board hearing, the Veteran limited his testimony to the claim for service connection for PTSD. The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action in this appeal is warranted. Regarding the claim for service connection for PTSD, in establishing a valid diagnosis of PTSD, VA has adopted the nomenclature of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). See 38 C.F.R. § 4.125. The DSM-5 recently replaced the DSM-IV. Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with the DSM-5. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. Since the Veteran’s claim was not certified to the Board until January 2016, the DSM-5 is applicable. The Veteran was last afforded a VA mental health examination in February 2012, at which the examiner declined to diagnose the Veteran with PTSD under the DSM-IV. However, given the above-cited applicable change in the diagnostic criteria, the Board finds that further examination and opinion would be helpful in resolving the Veteran’s claim for service connection for PTSD. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, the examiner must determine whether the Veteran has a diagnosis of PTSD in accordance with the criteria of the DSM-5. Regarding the claim for service connection for diabetes mellitus, the Board points out that VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon, supra; 38 C.F.R. § 3.159. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran’s Form DD-214 reflects service in the Republic of Vietnam (Vietnam) from September 1969 to August 1970. Certain diseases, to include diabetes mellitus type II, associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam Era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Service connection based on herbicide exposure will be presumed for certain specified diseases, including diabetes mellitus, that become manifest to a compensable degree within a specified period post discharge. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Here, as the Veteran served in the Republic of Vietnam during the applicable period, his exposure to herbicide agents is presumed. The treatment records of record, however, do not reflect a diagnosis of diabetes mellitus. In any event, the Veteran’s report that he has diabetes mellitus, coupled with his conceded exposure to herbicide agents, is sufficient to trigger VA’s duty to provide him an examination. See McLendon, supra. Hence, the AOJ should arrange for the Veteran to undergo a VA mental health and diabetes examinations, each by an appropriate clinician. The Veteran is hereby notified that failure to report to any scheduled examination(s) without good cause, may well result in denial of his claim(s). See 38 C.F.R. § 3.655. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record with respect to all claims on appeal is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA records, the claims file includes records of the Veteran’s treatment records from the Jesse Brown VA Medical Center (VAMC) dated through January 29, 2014. However, as recently as December 2017, the Veteran reported that he receives ongoing treatment at the Jesse Brown VAMC, to include group mental health treatment four times per month. See Board Hearing Transcript (Tr.) at 6. This indicates that there are potentially relevant outstanding VA treatment records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran since January 29, 2014, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The Board also notes that the Veteran is in receipt of receipt of Social Security Administration (SSA) disability benefits (as reported during the February 2012 VA mental health examination). Although records related to the SSA’s determination do not appear to have been obtained, they may be relevant to one or more of the Veteran’s claims on appeal. See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). As such, on remand, the AOJ should undertake appropriate action to obtain outstanding SSA records. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. As a final matter, the Board notes that in a September 2016 rating decision, the RO denied a rating greater than 100 percent for schizophrenia, paranoid type, as well as denied a TDIU. In his October 2016 NOD, the Veteran clearly expressed his disagreement with the September 2016 rating decision (and the Board notes that the Veteran believed those claims to be on appeal at the December 2017 Board hearing). To date, the RO has not yet issued an SOC with respect to the claims for a rating greater than 100 percent for schizophrenia, paranoid type, and a TDIU, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, the matters of entitlement to rating greater than 100 percent for schizophrenia, paranoid type, and a TDIU, must be remanded to the AOJ for issuance of a SOC. Manlincon, 12 Vet. App. at 240-41; Holland, 10 Vet. App. at 436. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C. § 7105; 38 C.F.R §§ 20.200, 20.201, 20.202. The matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative an appropriate SOC with respect to the issues of entitlement to a rating greater than 100 percent for schizophrenia, paranoid type, and a TDIU, along with a VA Form 9, and afford them full opportunity to perfect an appeal as to that issue. The Veteran and his representative are hereby reminded that to obtain appellate review of any issue not currently in appellate status, a timely appeal must be perfected—regarding the claims referenced above, within 60 days of the issuance of the SOC. 2. Obtain from the Jesse Brown VAMC (and any associated facility(ies)) all outstanding records of VA evaluation and/or treatment of the Veteran since January 26, 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Obtain from SSA any determination(s) pertinent to the Veteran's claim(s) for SSA benefits, as well as any medical records relied upon concerning the claim(s). Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the file. 4. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding pertinent private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 5. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA mental health examination, by an appropriate clinician—preferably, a psychiatrist or psychologist. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. All indicated tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly indicate whether the Veteran currently meets, or has met, the diagnostic criteria for PTSD under the DSM-5 at any time since approximately July 2010. If the Veteran has not met the criteria for a diagnosis of PTSD at any time during this period, the opinion provider must clearly so state and explain why, reconciling such conclusions with the various diagnoses of PTSD of record. If PTSD is diagnosed, the examiner should clearly explain how the diagnostic criteria are met, to include identification of the stressor(s) underlying the diagnosis, and comment upon the link, if any, between the stressor(s) and the Veteran’s symptoms. In addressing the above, the examiner should consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms since service. The examiner is advised that the Veteran is competent to report in-service events, as well as his symptoms and history, and that lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the opinion provider should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. Also, after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA diabetes examination, by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly indicate whether the Veteran has had diabetes mellitus type II at any time since approximately July 2010; and, if so, the approximate date of onset of the disability. In addressing the above, the examiner should consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms since service. The examiner is advised that the Veteran is competent to report his symptoms and history, that lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the opinion provider should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel