Citation Nr: 1807482 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-18 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a liver disability (claimed as liver cancer). 2. Entitlement to service connection for soft tissue sarcoma. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION The Veteran had active service from September 1965 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and January 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the Veteran's November 2014 substantive appeal (VA Form 9), he requested a Board hearing. However, in correspondence received in May 2016, the Veteran's representative indicated that the Veteran wanted to withdraw his pending request for a Board hearing. In light of the forgoing, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). The Board acknowledges that the psychiatric disability issue on appeal was characterized by the RO as entitlement to service connection for PTSD. In light of the evidence of record reflecting additional psychiatric diagnoses, the Board has recharacterized the issue more broadly in order to clarify the nature of the benefit sought. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). The Veteran is not prejudiced by the recharacterization of the issue, as the matter is being remanded for additional evidentiary development with subsequent reconsideration by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board observes that in September 2017, the Veteran's representative submitted arguments and medical evidence in support of the Veteran's claims on appeal. Thereafter, in September 2017, the RO issued a Supplemental Statement of the Case (SSOC) readjudicating the claims. In correspondence received in October 2017, the Veteran's representative argued that the additional evidence she submitted was not considered in the September 2017 SSOC. She indicated that she does not waive RO review of the arguments and evidence submitted to the VA in September 2017. The Board observes that the SSOC does not list the newly added material in the evidence section, nor is it discussed in the reasons and bases. In light of the forgoing, remand is required. Additionally, the Board observes that in conjunction with the Veteran's claim of service connection for a psychiatric disorder, he was provided a VA examination in July 2013 at which time major depressive disorder and PTSD were assessed. However, an etiological opinion was not provided for the diagnosed conditions. Thus, an additional VA examination must be provided and an etiological opinion must be obtained on remand. In September 2017, the Veteran's representative submitted a private medical opinion, dated in February 2017, in which a private psychologist opined that it is at least as likely as not that the Veteran's PTSD is related to military service and that all of his other conditions are secondary to his PTSD. However, her opinion was based on uncorroborated stressors. In this regard, she reported that the Veteran reported witnessing the death of a pilot whose jet crashed during take-off as well as pilots who died after flying against his conclusion that their aircrafts were not sound. Thus, the private opinion cannot serve as a basis to establish service connection for the claimed condition. However, the Board observes that the record does not show that efforts were made to obtain evidence which would corroborate the Veteran's reported stressors. Lastly, the Board observes that in the code sheet accompanying the January 2014 rating decision, it was noted that the Veteran is in receipt of benefits from the Social Security Administration (SSA). Records from SSA are potentially relevant to the Veteran's claims and VA therefore has a duty to undertake the necessary efforts to obtain them. 38 C.F.R. § 3.159(c); McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008); see also Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Undertake reasonable efforts to obtain evidence corroborating the Veteran's claimed stressors regarding witnessing the death of a pilot whose jet crashed during take-off as well as pilots who died after flying against his conclusion that their aircrafts were not sound. All efforts to obtain this information, and any responses, must be associated with the Veteran's electronic claims file. 2. The AOJ should contact the Social Security Administration and request copies of records pertaining to the Veteran's application for disability benefits, to include a copy of any decision rendered and the records upon which such decision was based. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder. Access to records in the Veteran's electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should delineate all psychiatric disorders identified on examination. If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. For any diagnosed psychiatric disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's psychiatric disability was incurred in service or is otherwise causally related to his active service or any incident therein. 4. If, and only if, it is determined that the Veteran's psychiatric disorder is related to military service, schedule the Veteran for a VA examination to determine the nature and etiology of his liver disability. Access to records in the Veteran's electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should provide an opinion, with supporting rationale, as to the following: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that any current liver disability was incurred in service or is otherwise causally related to his active service or any incident therein? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any current liver disability was caused by the Veteran's psychiatric disorder? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that any current liver disability has been aggravated (chronically worsened) by the Veteran's psychiatric disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. 5. After the development requested has been completed, and after conducting any additional development deemed necessary, the AOJ should readjudicate the claims, considering all the evidence of record. If the benefits sought remain denied, the AOJ must provide the Veteran and his representative with a supplemental statement of the case and afford them an appropriate period of time for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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).