Citation Nr: 18159638 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-20 414 DATE: December 19, 2018 ORDER Service connection for PTSD and a related panic disorder is granted. REMANDED An initial disability rating in excess of 70 percent for major depressive disorder is remanded. A disability rating in excess of 10 percent for tinnitus (to include consideration on an extraschedular basis) is remanded. Service connection for hepatitis b is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with post-traumatic stress disorder and a related panic disorder. See August 2010 VA examination. 2. The Veteran has provided competent and credible statements describing traumatic events he experienced while in service. He witnessed the death of several friends and was part of the reclamation team to retrieve body parts from an accident scene. See February 2008 letter to Senator John Cornyn. 3. The August 2010 VA examiner opined that all the Veteran’s psychiatric diagnoses were either caused by or exacerbated by his military experience. CONCLUSION OF LAW 1. The criteria for service connection for PTSD and a related panic disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1974 to July 1980. The Board notes that on his June 2015 substantive appeal (VA Form 9), the Veteran requested a Board hearing. In October 2017, he withdrew this request. For the reasons outline above, service connection for PTSD and a related panic disorder is warranted. REASONS FOR REMAND 1. An initial disability rating in excess of 70 percent for major depressive disorder The Veteran was last afforded a VA examination in August 2010. His most recent treatment records indicate his symptoms may have worsened since that time. Therefore, a new examination must be obtained to determine the current severity of his symptoms. See June 2017, September 2017, and February 2018 treatment records. The Board notes that this claim was previously characterized as “to include on an extraschedular basis.” However, use of the term “such as” in the rating criteria that apply to all mental condition indicates that the list of symptoms is “non-exhaustive,” meaning that a Veteran need not exhibit all, most, or even some of the symptoms to warrant a given rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Because the listed symptoms are merely examples, it follows that any mental symptoms a Veteran might experience are encompassed by the rating criteria by analogy, even if they are not specifically listed. Therefore, there are no circumstances under which the established schedular criteria could be “inadequate to describe the severity and symptoms of a claimant’s disability.” See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.321(b)(1). As a result, the Board has recharacterized the claim to clarify that extraschedular consideration is not required in this case. 2. Service connection for hepatitis b The RO issued a rating decision in July 2009 denying the Veteran’s claim for service connection for hepatitis b. The Veteran submitted a statement in July 2010 regarding his hepatitis b. The regional office (RO) appears to have interpreted this as a new claim, however, because it was received within one year of the June 2009 rating decision, the Board construes this as a valid NOD for the 2009 rating decision. Therefore, the June 2009 rating decision is still pending before the Board. It is unclear from the Veteran’s treatment records whether he has a current hepatitis b disability. February 2016 treatment records note hepatitis b with development of immunity. A new examination must be obtained to determine whether the Veteran has a current hepatitis b disability. Furthermore, the Veteran has stated that he was exposed to herbicide agents which were sprayed on the base where he was stationed in the Philippines. It does not appear from the record that the RO has considered this specific claim. The RO should conduct the appropriate development regarding this statement. 3. A disability rating in excess of ten percent for tinnitus, to include consideration on an extraschedular basis The Veteran’s treatment records and October 2010 VA examination indicate that he experiences dizziness which may be related to his tinnitus. The October 2010 examiner stated that the results suggested the need for an examination by an otolaryngologist for dizziness. An examination must be obtained to determine what symptoms may be related to the Veteran’s tinnitus. REASONS FOR REMAND The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate specialist to determine the current severity of his depression. 2. Conduct any appropriate development regarding the Veteran’s statement that herbicide agents were sprayed on the grounds of the base where he was stationed in the Philippines. 3. After completing step 2, schedule the Veteran for an examination with an appropriate specialist to determine whether he has a current hepatitis b disability. If he does have a current disability, based on a review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current disability was incurred during his period of active military service, or is otherwise related or attributable to his period of active service, including any herbicide agent exposure therein (if confirmed)? 4. Schedule the Veteran for a VA examination to determine the current severity and symptoms associated with his tinnitus. The examiner should consider the reports of dizziness and imbalance found in the October 2010 VA examination and September 2010 treatment records. The examiner must describe all findings in detail and provide a detailed explanation (rationale) for all conclusions and opinions expressed. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she must state this and specifically explain why an opinion cannot be provided without resorting to speculation. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. D’Allaird, Associate Counsel