Citation Nr: 1807394 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-18 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability (including posttraumatic stress disorder (PTSD), adjustment disorder, major depressive disorder, and mood disorder), to include as secondary to service-connected disabilities. 2. Entitlement to an effective date prior to June 20, 2013, for the award of a 30 percent rating for right lower extremity peripheral neuropathy. 3. Entitlement to an effective date prior to June 20, 2013, for the award of a 30 percent rating for left lower extremity peripheral neuropathy. REPRESENTATION Veteran represented by: Daniel F. Smith, Esq. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1962 to September 1966. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2010 and March 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). On the Veteran's June 2013 VA Form 9, he requested a hearing before the Board. However, in statements received in July 2013, January 2015, and November 2015, he withdrew his request for such a hearing. The Board has characterized the issue of service connection for an acquired psychiatric disability as listed on the title page (which encompasses the Veteran's claims of service connection for PTSD, adjustment disorder, major depressive disorder, and mood disorder), and notes that a claim for a mental health disability includes any mental health disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). [In February 2016, the Veteran filed a notice of disagreement (NOD) appealing the effective date assigned for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) in a March 2015 rating decision. Thereafter, the RO took action in accordance with 38 C.F.R. § 19.26(a) by sending him an appeals election letter in June 2016 and in August 2017, acknowledging receipt of his February 2016 NOD in both of these letters. The RO is currently developing this issue to allow for issuance of a statement of the case addressing this issue, and such action precludes the need for the Board to remand the matter for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).] The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that additional development is necessary for the claims on appeal. Service Connection Claim The Veteran contends that he currently has an acquired psychiatric disability that is due to his military service and/or was caused by or is aggravated by at least one of his service-connected disabilities (i.e., type 2 diabetes mellitus, right and left lower extremity peripheral neuropathy, and bilateral mild diabetic retinopathy). In a September 2017 statement, the Veteran's attorney affirmed that the Veteran is seeking service connection for an acquired psychiatric disability to include as secondary to all of his service-connected disabilities (and not just diabetes). The Veteran's service treatment records do not note any complaints, findings, diagnoses, or treatment of any psychiatric symptoms or disabilities. His service in the Republic of Vietnam has been verified, and he has consistently reported that he participated in combat during such service. Post-service, the record reflects that the Veteran sought psychiatric treatment from a private psychologist (Dr. Reeder) from September 2001 through October 2003. The reports of this treatment are not currently of record and should be obtained on remand. VA treatment reports of record document that the Veteran has been diagnosed with several acquired psychiatric disabilities (including PTSD, adjustment disorder, major depressive disorder, and mood disorder) throughout the period of the current claim. An April 2009 VA treatment record noted that he had depression and that he "is fixated on issues r/t [related to] Vietnam" [but the medical provider did not provide a nexus opinion explicitly linking a diagnosis of depression to the Veteran's military service]. A December 2009 VA treatment record noted that the Veteran's PTSD symptoms were stable and that he "has reported intrusive thoughts of his past military service along with survivor guilt" [but the medical provider did not provide a nexus opinion explicitly linking a diagnosis of PTSD to the Veteran's military service]. At an April 2010 VA psychiatric examination, the Veteran was diagnosed with adjustment disorder with depressed mood, and the examiner noted that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Thereafter, a January 2011 VA treatment record noted the following Axis I diagnoses for the Veteran: mood disorder "Due to a General Medical Condition (e.g., diabetes)" [with no rationale provided for this etiology]; history of alcohol abuse; major depressive disorder, recurrent, moderate; nicotine dependence with physiological dependence; and PTSD (by chart review). In an October 2011 addendum opinion, the April 2010 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's current psychiatric disability was incurred in or caused by his service. For rationale, the VA examiner noted: "Records evidence a number of intercurrent current stressors that contribute to this Adjustment Disorder with Depressed Mood including a history of continued alcohol abuse, the death of his son, conflict in interpersonal relationships, and health related concerns." [However, it appears that the VA examiner did not consider or address the Veteran's reported combat service when providing this opinion.] The VA examiner also opined that it was less likely than not (less than 50 percent probability) that the Veteran's current psychiatric disability was proximately due to or the result a service-connected disability. For rationale, the VA examiner noted: "The [V]eteran reported symptoms of depression prior to his recent diagnosis of Mood Disorder due to a General Medical Condition. Thus it would resort to mere speculation to opine as to whether this [V]eteran's adjustment disorder with depression is due to or aggravated by his service connected condition." At an April 2013 VA psychiatric examination, the Veteran was diagnosed with depression not otherwise specified (NOS). The examiner opined that this disability was less likely as not caused by or a result of the Veteran's service-connected diabetes. For rationale, the examiner noted the Veteran's history of stressful circumstances (i.e., using alcohol, enduring the deaths of his son and both parents, undergoing divorce, having family and friends in Manhattan at the time of the September 11, 2001 terrorist attacks, and having financial problems related to his ex-wife's gambling), and then noted: "The term 'Not otherwise specified' is used when there are minimal symptoms and many factors that could potentially be causing his depression symptoms. Veteran's Diabetes Mellitus is a less likely contributing factor for his depression." [No opinion was provided with regard to whether a current psychiatric disability is aggravated by the Veteran's service-connected diabetes or whether a current psychiatric disability was caused or aggravated by any other service-connected disability.] In a June 2013 statement, the Veteran's girlfriend (who initially submitted a statement in August 2011 noting that she had the medical training of a fire department first responder) noted that diabetes "is known to have a direct link to depression" and opined: "Due to his [the Veteran's] condition of chronic diabetes, his depression worsens, on a monthly basis" [with no rationale provided for this opinion]. The most recent VA treatment reports of record are dated in August 2016, at which time a VA medical problem list included the following diagnoses for the Veteran: chronic recurrent major depressive disorder; recurrent major depression; chronic PTSD "following military combat" [with no rationale provided for this etiology]; dysthymia; and depression. As indicated above, there are no medical opinions currently of record which adequately address, with sufficient rationale, whether there is a relationship between any of the Veteran's current acquired psychiatric disabilities and his military service (to include his reports of combat participation therein). In addition, there are no medical opinions currently of record which address whether a current psychiatric disability is aggravated by the Veteran's service-connected diabetes or whether a current psychiatric disability was caused or aggravated by any of his other service-connected disabilities. In addition, the Board notes that the Veteran has not been afforded a VA psychiatric examination since VA first implemented the use of the DSM-5 (effective August 4, 2014) to replace the DSM-IV. On remand, a new VA psychiatric examination with all necessary medical opinions must be conducted. Earlier Effective Date Claims The effective date of an award based on a claim for increase is generally the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). An exception to this rule provides that the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (when considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application). The Veteran filed his claim for increased ratings for his right lower extremity peripheral neuropathy and for his left lower extremity peripheral neuropathy on June 20, 2013. At a June 2016 VA peripheral neuropathy examination, the Veteran stated that a drop foot condition "started a couple yrs [years] ago" and that a neurologist had recommended use of foot braces. It was also noted that he had used a cane for balance "for about 3 yrs [years]." There are no treatment reports currently of record which document this treatment from a private neurologist and/or which show the prescription and/or use of foot braces and a cane. Based on the Veteran's statements at his June 2016 VA examination, the Board notes that these outstanding records may have been created within the one-year timeframe prior to the Veteran's June 20, 2013 increased rating claim and may show a factually ascertainable increase in disability during that time period. Therefore, such records must be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, obtain all records of the Veteran's treatment for an acquired psychiatric disability at any time (to specifically include all records from Dr. Reeder from September 2001 through October 2003), as well as all records of his treatment for his right and left lower extremity peripheral neuropathy during the one-year period prior to the filing of his June 20, 2013 increased rating claim. If any identified records cannot be obtained and it is determined that further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain all updated VA treatment records from August 2016 to the present. 3. After completing the development requested in items 1 and 2, schedule the Veteran for a VA psychiatric examination with a clinician with appropriate expertise in order to ascertain the nature and etiology of all of his current acquired psychiatric disabilities. The claims file should be made available to the examiner for review. Any indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. After reviewing the claims file, the examiner should provide an opinion on the following questions: (a) Identify all valid diagnoses of acquired psychiatric disabilities present at any time since the pendency of the claim (including PTSD, adjustment disorder, major depressive disorder, and mood disorder, as documented in the medical evidence outlined above), with additional consideration of the DSM-5, and indicate whether each of the current diagnoses is separate and distinguishable from the others. (b) For each acquired psychiatric disability that is separately and distinguishably diagnosed: (i) Is it at least as likely as not (50 percent probability or greater) that such disability was incurred in, related to, or caused by any incident of the Veteran's military service (to include his reports of combat service in Vietnam)? (ii) Is it at least as likely as not (50 percent probability or greater) that such disability was caused by any of the Veteran's service-connected disabilities (i.e., type 2 diabetes mellitus, right and left lower extremity peripheral neuropathy, and bilateral mild diabetic retinopathy)? (iii) Is it at least as likely as not (50 percent probability or greater) that such disability is aggravated beyond the natural progression of the disability by any of the Veteran's service-connected disabilities (i.e., type 2 diabetes mellitus, right and left lower extremity peripheral neuropathy, and bilateral mild diabetic retinopathy)? (Aggravation is any increase in severity beyond the natural progression of the disability.) The examiner should provide a complete rationale for any opinion provided. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for an acquired psychiatric disability, entitlement to an earlier effective date for the award of a 30 percent rating for right lower extremity peripheral neuropathy, and entitlement to an earlier effective date for the award of a 30 percent rating for left lower extremity peripheral neuropathy. If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).