Citation Nr: 1808418 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-35 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, to include as secondary to the service-connected fracture of mandible, left subcondylar region. REPRESENTATION Appellant represented by: Michael A. Steinberg, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided hearing testimony before the undersigned at a June 2017 Travel Board hearing. A transcript of that hearing is within the record before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran claims service connection is warranted for a psychiatric disorder, which is shown in the record as diagnosed anxiety disorder and depressive disorder. Additional evidentiary development is needed. Medical Opinion The Veteran's claim is primarily that his currently diagnosed psychiatric disorder is aggravated by the residuals of his service-connected fracture of mandible, left subcondylar region. In particular, the Veteran reports a worsening of the functional symptoms of his service-connected jaw, including sensory symptoms of numbness causing slurring, spitting, drooling and unknowingly having pieces of food around his mouth. He reports this to be very embarrassing and causing him to feel uncomfortable and sad. See hearing transcript at page 9. He believes his anxiety and depressive disorder would have existed regardless of the jaw injury, but feels it is worsened due to the service-connected jaw fracture residuals. Id. at page 12. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The symptoms described by the Veteran as causing him embarrassment and sadness, which he contends are due to his service connected disability, are shown in the record as early as April 1998. A VA dentist noted subjective complaints of numbness in the entire jaw, including the lips and chin area, which the Veteran at that time described as starting one year prior. A heavy feeling lower lip, food collecting between the Veteran's lip and teeth, and drooling were also noted in this report. This dentist found the cause of the numbness to be unknown and noted that mandibular nerve paresthesias secondary to a dental procedure occurs at the time of the procedure, not many years later. However, shortly thereafter, the RO assigned a 10 percent rating for the service-connected mandible fracture based upon April 1998 to June 1998 records from the Tampa VA Medical Center (VAMC) which recognized "subjective sensory loss." See February 1999 Rating Decision. Thus, there is at least some recognition by VA that the Veteran experiences sensory loss due to his service connected condition, which he contends cause the embarrassing symptoms he describes as worsening his psychiatric disorder. The Veteran was afforded a VA examination in September 2013. The examiner reviewed the Veteran's claims file, his treatment records and recent research and conducted a clinical evaluation. The examiner concluded that the Veteran's mixed anxiety-depressive disorder is less likely as not proximately due to or the result of the Veteran's service-connected fracture of mandible, subcondylar region. The basis for this opinion was the Veteran's report of longstanding anxiety since childhood, as well as a lack of mental health treatment in service and initial mental health treatment occurring eleven years after separation. The examiner suggested that the Veteran's depression and/or anxiety can be attributed to psychosocial stressors such as loss of job, financial strain and relationship problems. This examiner, however, provided no opinion as to whether the symptoms experienced by the Veteran, such as numbness, slurring, spitting, drooling and unknowingly having pieces of food around his mouth, which the Veteran has suggested are very embarrassing and cause him to feel uncomfortable and sad, have aggravated his anxiety and depressive disorders. The examiner's opinion was limited to proximate cause and the basis for the opinion was largely related to direct service connection, but was lacking an opinion on aggravation. To this extent only, the September 2013 examination report is inadequate, particularly considering the Veteran's claim is primarily based upon an aggravation theory of entitlement. The Veteran did submit a July 2015 private opinion from a clinical psychologist in support of his claim. This psychologist concluded that the Veteran's mental disorder was exacerbated by his service-connected disability and as a result he has become more impaired. This opinion suggests the potential for aggravation, however, it does not meet the requirements of 38 C.F.R. § 3.310(b), so it cannot be used as a basis to grant this claim. It does point to the need for an adequate opinion on aggravation. For these reasons, remand is necessary so VA can obtain an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Social Security Records The July 2015 private report also includes notation of the Veteran's receipt of disability benefits from the Social Security Administration (SSA) starting in 2011 due to his depression and anxiety. The Veteran also reported this as the time an increase in his symptoms occurred leading to suicidal ideation. The Veteran's claims file includes VA records of inpatient care in September 2011 showing he presented to the emergency room reporting worsening depressive symptoms and suicidal ideation, as well as signs of cutting around his abdomen and wrists. At the Board hearing, the Veteran reported seeing an examiner at SSA. See hearing transcript at page 18. Thus, it appears that the Veteran's claimed exacerbation in symptoms, which he contends is due to the residuals of his service-connected mandible fracture, occurred around the same time he sought benefits from SSA. Where there is actual notice to VA that the Veteran is receiving disability benefits from SSA, and particularly in a case such as this where the records are likely pertinent in both time and content to the Veteran's claim, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon. Murincsac v. Derwinski, 2 Vet. App. 363 (1992). The RO should attempt obtain records from SSA related to the Veteran's claim and award of SSA disability benefits for his anxiety and depression. Private Treatment Records Also, on remand, the RO should assist the Veteran in obtaining private treatment records related to his anxiety and depression. 38 C.F.R. § 3.159(c)(1) (2017). At the hearing, he reported that he started seeing a private physician for mental health issues four to five years prior to 2011. See hearing transcript at page 16. The September 2011 VA inpatient notes show the Veteran reporting a prior prescription for Prozac by his private physician. While the Veteran was afforded an opportunity in April 2013 to submit authorizations so VA could assist him in this regard, because he has more recently reported this private treatment, on remand, the Veteran should be afforded another opportunity to authorize VA to assist in obtaining these potentially relevant private records. VA Treatment Records As noted above, there is an April 1998 report from a VA dentist in the file. Clinical reports dating from April 1998 to June 1998 and the September 2011 records from the Tampa VAMC are also of record. Any additional records pertaining to clinical care of the Veteran's psychiatric disorder should be associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain records from the Social Security Administration related to the Veteran's 2011 claim and award of disability benefits related to his psychiatric disorder. Associate all records obtained with the claims file. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to complete appropriate forms to authorize VA to obtain any relevant, non-duplicative records from his private physician(s) related to his claimed psychiatric disorder. If the Veteran provides this authorization, assist him by attempting to obtain these records. Associate all records obtained with the claims file. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain and associate with the record all relevant, non-duplicative VA treatment records dating since the Veteran's separation from active service related to the claimed psychiatric disorder. Associate all records obtained with the claims file. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 4. Once the record is complete to the extent possible, refer the Veteran's entire claims file to a medical professional of appropriate expertise. If the medical professional determines that an in-person examination of the Veteran is necessary, schedule the Veteran for a VA examination to determine whether the Veteran's psychiatric disorder has been aggravated by the symptoms of his service-connected mandible fracture. The contents of the electronic claim files should be made available to the designated medical professional for review. Should examination be deemed warranted, all tests and studies, as well as the clinical findings contained therein, should be reported in detail. The examiner is asked to provide an opinion addressing the following question: Is it at least as likely as not (50 percent or greater probability) that any psychiatric disorder present during the pendency of this claim has permanently progressed at an abnormally high rate due to or as the result of the Veteran's service-connected fracture of mandible, left subcondylar region? The medical professional completing this report should discuss the potential impact of any sensory deficit related to the jaw disability that may have caused symptoms such as numbness in the jaw, drooling and a collection of food particles around the Veteran's mouth, which he describes as embarrassing and saddening. The report should include reasons for any opinion expressed. If the medical professional completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).