Citation Nr: 1806949 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-14 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployabililty (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1975 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran filed a Notice of Disagreement (NOD) in November 2013 and a Statement of the Case (SOC) was issued in February 2014. The Veteran filed his Substantive Appeal via a VA Form 9 in April 2014. Thus, the Veteran perfected a timely appeal of the issues. A Supplemental Statement of the Case (SSOC) was issued in October 2016. In May 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. The Board notes that the issue of entitlement to a disability rating in excess of 40 percent for bilateral hearing loss was listed on the October 2016 SSOC as well as on the VA Form 8 (certification of appeal) as an issue on appeal. Bilateral hearing loss was also addressed in the May 2017 Board hearing; however, the Board notes that the Veteran did not file a Notice of Disagreement in accordance with 38 U.S.C. 7105(a), (d) (2012) with respect to this issue. Thus, the issue of entitlement to an increased rating for bilateral hearing loss was inappropriately listed on the October 2016 SSOC. 38 C.F.R. § 19.31(a) (2017). The Board further notes that the listing of an issue on a VA Form 8 does not serve to confer the Board jurisdiction over this issue. See 38 C.F.R. 19.35 (2017). Although the Board addressed this issue at the May 2017 hearing, the issue of an increased rating for bilateral hearing loss is not a part of the current appeal, and thus is referred to the RO for appropriate action in accordance with the filing of claims. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Psychiatric Disorder The Veteran has generally contended that he suffers from post-traumatic stress disorder as a result of his active military service. He has pointed to two specific stressors as the source of his PTSD. Firstly, the Veteran contends that while stationed in Germany he was working as a radar operator when he received traffic directing the initiation of a missile launch of nuclear warheads. The Veteran has stated that the launch was aborted and he later learned that the radio correspondence initiating the launch was the result of a technical error from Washington. Nonetheless, the Veteran asserts that the incident was a source of fear and trauma. Secondly, the Veteran contends that when he was in the barracks, a fellow soldier was having psychological problems and placed in a psychiatric unit where he subsequently committed suicide. The Veteran stated that he was not present but that he heard the shot from a gun when the fellow soldier shot himself. See May 2017 Board Hearing Transcript. In addition to his claimed stressors, the Veteran indicated that he suffered from nervousness, was easily startled, and did not like to be around people, particularly large crowds. The Veteran asserted that these symptoms began in boot camp where he experienced yelling and verbal abuse. He further speculated that he developed depression at this time. Id. VA attempted to verify the stressors as described by the Veteran; however in September 2012 a memorandum was issued with a formal finding of a lack of information required to verify stressors in connection to the PTSD claim. The memo noted that none the incidents described by the Veteran were documented in his personnel file and that a follow-up request was sent to the Veteran in March 2012. The Veteran then stated that he could not recall the name of the fellow soldier who committed suicide or the dates of the alleged missile launch. See September 2012 VA Memorandum. In the February 2014 SOC, the RO noted that the Veteran's VA medical records showed that he was diagnosed and treated for PTSD. The RO determined however that this diagnosis was based on unconfirmed stressors and therefore did not constitute a valid diagnosis. The Board notes that VA treatment records show that the Veteran has been treated for post-traumatic stress disorder and depression. A September 2013 psychiatric evaluation lists Axis I diagnoses of mood disorder, not otherwise specified and PTSD. The treatment plan indicates that the Veteran was stable on a mood medication and would be referred to an anger management group. Although the Veteran's history was noted, the author of the evaluation did not offer an opinion as to the etiology of the Veteran's psychiatric conditions. The record includes notations from group therapy as well as a number of other mental health treatment notes. For example, an April 2017 treatment note stated that the Veteran was experiencing intrusive thoughts and flashbacks which caused emotional dysregulation and distress. The diagnosis was again listed as PTSD. Although the record reflects treatment and diagnoses of PTSD, depression, and possible mood disorders, it does not appear that the Veteran has ever been afforded a comprehensive VA examination to determine the nature and etiology of any present psychiatric disorders. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his claim. 38 U.S.C. § 5103A (d) (West 2012); 38 C.F.R. § 3.159(c)(4) (2017). TDIU Adjudication of the claim for a TDIU rating must be deferred pending the aforementioned development. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA psychiatric examination to determine the nature and etiology of any claimed psychiatric disorder, to include PTSD, depression, or a mood disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. After the claims file is reviewed, the examiner should offer an opinion addressing whether or not the Veteran has a diagnosis of a psychiatric disorder. If such a diagnosis is rendered, the examiner is asked to offer comments and an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent) that the diagnosed psychiatric disorder is in any way causally or etiologically related to his active service. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking the development above, the Veteran's claims should be re-adjudicated. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This 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).