Citation Nr: 18160058 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 11-15 098A DATE: December 21, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of a stress fracture of the left proximal third tibia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1970 to June 1971. The Veteran testified at a December 2017 hearing before the undersigned Veterans Law Judge. 1. Service Connection – Acquired Psychiatric Disorder Upon review, the Board finds that remand is required for a new VA examination and opinion. In April 2018, the Board reopened the Veteran’s claim and remanded it to afford the Veteran a VA examination. The Board stated that “[t]he Veteran and several witnesses…testified at a December 2017 hearing regarding his humiliation in service and how they noticed an immediate change in his behavior” and that regarding the new VA examination “[e]vidence in the claims file to be considered includes the Veteran’s testimony regarding a possible link to service and observed behavioral changes immediately after discharge.” The Veteran was afforded an August 2018 VA examination and a Mental Disorders Disability Benefits Questionnaire (DBQ) was completed, as well as an addendum opinion. An opinion was provided in the DBQ that the “Veteran’s Unspecified Depressive Disorder was less likely as not (less than fifty percent probability) first manifested in service or was caused or aggravated by events in active service” and that the “Veteran’s symptoms of depression appear most likely related to post military life stressors including chronic alcoholism with resulting occupational and social limitations due to arrests, prison sentences and poor interpersonal functioning.” The addendum opinion contained similar information and stated that the “Veteran’s symptoms of depression…fail to have been first manifested in service or caused by his military service.” The provided opinions did not discuss or address the evidence referenced in the prior April 2018 Board decision and remand – specifically “the Veteran’s testimony regarding a possible link to service and observed behavioral changes immediately after discharge.” As such, the Board finds that remand is warranted for a new VA examination and opinion that addresses the referenced lay evidence. The Board also notes that the Veteran variously reported, essentially, experiencing depression since his active service, that he received VA treatment related to his mental health symptoms shortly after his active service and to attempting suicide shortly after service in 1972. In this regard, on the Veteran’s initial prior July 2006 claim for entitlement to service connection for depression and a nervous condition, he stated that “[a]s soon as I came out of the service I began treatment at the Houston VA Center for a nervous condition and depression. I received treatment several times for attempted suicide in the early 70’s” and he also stated that “[m]y ‘Depression’ problem that I’ve had since my Army days has caused me a lifetime of problems.” In addition, various medical records (outlined further in the remand directives below) dated prior to this 2006 claim included reports from the Veteran of a similar history. Also, the Veteran’s sister (D.G.) variously reported that, essentially, she took the Veteran to receive VA treatment related to mental health symptoms shortly after his active service. For example, in a December 2010 statement she stated that “I am personally knowledgeable of the various trips we made to the VA hospital in Houston…for psychological counseling, sleep, nerve and depression soon after discharge.” See also March 2010 Statement, March 2012 Statement, December 2017 Statement. The Veteran’s other sister, K.S., also testified at the December 2017 Board hearing that “all of us have taken him to the VA from the minute he got out” and she also referenced the Veteran’s friend D.C. (who also testified at the hearing) to taking the Veteran to the VA. In general, the August 2018 VA opinion did not discuss this potentially probative evidence and the examiner’s attention on remand will be directed to this evidence. In addition, in a statement received after the August 2018 VA examination, the Veteran referenced an additional in-service incident involving military sexual trauma (MST), which he apparently had not previously reported to VA (he noted that he reported it at the August 2018 VA examination). See September 2018 Veteran Statement, pages 12-15. The Veteran stated that “that incident stigmatized me for life.” The examiner’s attention on remand will be directed to this report. 2. Increased Rating – Residuals of a Stress Fracture of the Tibia Upon review, the Board finds that remand is required for an addendum VA opinion. By way of background, an August 1971 rating decision granted entitlement to service connection for “stress fracture left tibia” and assigned a noncompensable (0 percent) disability rating. During the current claim, an April 2010 rating decision assigned a 10 percent disability rating for residuals of stress fracture left proximal third tibia, from December 16, 2009. The rating decision stated that “VA treatment records continue to show complaints of left knee pain,” discussed a March 2010 VA examination and stated that “[a] 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints.” In April 2018, the Board remanded this claim to afford the Veteran a new VA examination. The Veteran was afforded the requested VA examination in August 2018 and a Knee and Lower Leg Conditions DBQ and a Bones examination report were completed. The examination reports identified pain and other manifestations related to the Veteran’s knee. The examiner (Dr. M.B.) also included the following: It is clear that the [V]eteran has complaints of ongoing pain in the area of the proximal tibia, but there is no evidence that the pain is related to the previous stress fracture…At this juncture the etiology of the [V]eteran’s pain in the area of the left proximal tibia remains unclear, but there is no evidence that his current complaints are related to the service-connected stress fracture which occurred in 1971. No functional residuals of the stress fracture of the left proximal tibia can be identif[]ied currently. While the opinion stated that “there is no evidence that the pain is related to the previous stress fracture” and “there is no evidence that his current complaints are related to the service-connected stress fracture,” the opinion also stated that “the [V]eteran reports that he has had pain in the area of the previous fracture which has been ongoing since the time of service.” In addition, in response to a question of “please state all current residuals of Veteran’s stress fracture left proximal third tibia,” the March 2010 VA examination report (from Dr. O.A.) noted, “bilateral knee and ankle pain, chronic.” The August 2018 VA opinion’s references to “no evidence” appears in conflict with the Veteran’s lay statements and the March 2010 VA examination report. As such, the Board finds that remand is warranted to obtain an addendum opinion that addresses this evidence. 3. Entitlement to a TDIU As outlined above, the acquired psychiatric disability claim is being remanded. The Veteran has contended that he is unable to secure or follow any substantially gainful occupation due to, in part, his nonservice-connected acquired psychiatric disability that is on appeal. See March 2017 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). As such, the Veteran’s TDIU claim is inextricably intertwined with the acquired psychiatric disability claim being remanded and therefore must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). All claims While on remand, outstanding VA treatment records must be obtained. In a September 2009 statement, the Veteran referenced depression and stated “[p]ull all records from VAOPC Fort Worth and VAMC Dallas from [A]pril 2009 to present.” In a September 2017 statement, the Veteran stated “I have [n]europathy in my leg and continue to be treated for mental disorder. This should be in my VA Records as I am being treated by both VA Dallas and VA Forth Worth.” The most recent records of record from the Dallas and Fort Worth VA facilities are from April 2011. In addition, these printed out paper records were labeled as being “pertinent” records, which suggests that the records are incomplete. As such, on remand all records from April 2005 to the present from the Dallas and Fort Worth VA facilities must be obtained. The matters are REMANDED for the following action: 1. Obtain all records from April 2005 to the present from the Dallas and Fort Worth VA facilities. 2. Afford the Veteran a VA examination with respect to his acquired psychiatric disability claim with a different examiner than who conducted the August 2018 VA examination. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired psychiatric disability, to include depressive disorder, had its onset during active service or is caused or aggravated by any in-service events. While review of the entire claims folder is required, attention is invited to the following: (a.) The Veteran’s report of experiencing depression since his active service and that he attempted suicide shortly after active service in 1972. For example, in the Veteran’s initial prior July 2006 claim he stated that “[a]s soon as I came out of the service I began treatment at the Houston VA Center for a nervous condition and depression. I received treatment several times for attempted suicide in the early 70’s” and he also stated that “[m]y ‘Depression’ problem that I’ve had since my Army days has caused me a lifetime of problems.” Various medical records dated prior to the Veteran’s initial 2006 VA claim included reports of this history, to include: i. March 1992 VA Treatment Note (stating that the Veteran reported “insomnia since age 17” and a “[history of] depression – suicide attempt by overdosing on [over the counter] meds at age 19”). ii. August 1994 VA Treatment Note (noting “[history of] prior treatment for nerves in 1970’s. [History of] a prior suicide attempt in early 70’s – by [overdose]”). iii. June 1997 Texas Department of Criminal Justice Record (noting that the Veteran reported “an attempted overdose on valium 25 years ago”). iv. January 1999 John Peter Smith Hospital Record (noting that the Veteran reported attempting suicide at age 19 by overdosing on valium and to receiving outpatient treatment for depression from 1971-1972). v. June 1999 Trinity Springs Pavilion Record (stating that the Veteran was “with a long history of depression” and that “says he has been treated for depression since the age of 19”). vi. February 2005 Tarrant County Record (noting a first suicide attempt in 1972 by overdosing on valium after discharge from the Army and noting “depressed”). vii. April 2005 Tarrant County Record (stating that the Veteran “noted having depression at age 19 after discharged from Army”). viii. June 2005 Unlabeled Record (with a report of a suicide attempt in 1972 by overdosing with valium due to being depressed). (b.) The report that the Veteran received VA treatment related to his mental health symptoms shortly after his active service. This included reports from the Veteran’s sisters that they (and his friend D.C.) took him to VA appointments, as shown by: i. Sister D.G. March 2010, December 2010, March 2012, December 2017 Statements. ii. December 2017 Board Hearing Transcript, page 9 (sister K.S. stating that “all of us have taken him to the VA from the minute he got out” and referencing the Veteran’s friend D.C. to taking the Veteran to the VA). (c.) Various lay evidence of record regarding observed behavioral changes in the Veteran after his active service. Specific examples include: i. Sister D.G.’s June 2009 and March 2012 statements. ii. Sister K.S.’s June 2009 statement. iii. December 2017 Board Hearing Transcript, including testimony from sisters D.G. and K.S. and friend D.C. (d.) VA treatment records from the 1970s, which included: i. December 1975 VA Treatment Note (noting the Veteran as being “very depressed asking for help” and noting a diagnosis of anxiety reaction) ii. November 1976 VA Hospital Summary (reflecting inpatient treatment related to an overdue of valium and noting diagnoses of depression and suicidal gesture) iii. March 1978 VA Treatment Note (noting “2nd admission for valium abuse [and] depressive reaction). (e.) The Veteran’s reported in-service MST, which he stated “stigmatized me for life.” See September 2018 Veteran Statement, pages 12-15. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 3. Obtain an addendum opinion from the August 2018 VA examiner if available, or from an otherwise qualified medical professional, regarding the Veteran’s left tibia claim. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: The August 2018 VA opinion stated that “there is no evidence that the pain is related to the previous stress fracture” and “there is no evidence that his current complaints are related to the service-connected stress fracture.” The opinion, however, also stated that “the [V]eteran reports that he has had pain in the area of the previous fracture which has been ongoing since the time of service” and the March 2010 VA examination report (from Dr. O.A.) noted, in response to a question of “please state all current residuals of Veteran’s stress fracture left proximal third tibia,” “bilateral knee and ankle pain, chronic.” Please discuss and reconcile the August 2018 VA opinion with the Veteran’s lay report and the March 2010 VA examination report. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel