Citation Nr: 1808633 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-10 420 ) 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 disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, to include PTSD. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to an acquired psychiatric disorder, to include PTSD, and/or hypertension. REPRESENTATION Veteran represented by: Jeany Mark, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from February 1966 to December 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal of February 2009 and September 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This case was previously remanded by the Board in June 2016. The case has been returned to the Board for review. The Veteran initially submitted a claim for entitlement to service connection for PTSD. See Third Party Correspondence, received May 2008. The medical evidence of record includes diagnoses for psychiatric disabilities other than PTSD. Although the Veteran sought service connection only for PTSD, a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, such as PTSD, but instead makes a general claim for compensation for the difficulties posed by the mental condition. Id. Accordingly, the Board has reframed the issue on appeal, as shown on the title page. The Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) of the Board in January 2007. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). However, the VLJ who conducted the January 2007 Board hearing is no longer employed by the Board. The Veteran was scheduled for a second hearing on February 13, 2014. However, the Veteran was not notified of the hearing date due to a change of address. The Veteran was scheduled for a Board hearing in May 2015. In April 2015 VA received a correspondence from the Veteran's attorney requesting to withdraw his scheduled Board hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Acquired Psychiatric Disability The Veteran contends that he suffers from PTSD due to his experiences during service. Specifically, he contends that during service he was subject to a personal assault. The Veteran has submitted numerous statements describing his in-service personal assault and a VA treatment record linking his currently diagnosed PTSD to the in-service assault. The Veteran has not been provided a VA examination with respect to his claim for service connection for an acquired disability. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The record shows that the Veteran has been diagnosed with an acquired psychiatric disorder, to include PTSD, somatoform disorder, panic disorder and depressive disorder, NOS. In addition, VA received a letter from the Veteran's VA mental health examiner reporting that the Veteran's PTSD is a result of his in-service personal assault. Furthermore, the Veteran has reported that is psychiatric symptoms have persisted since the in-service event. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Additionally, the Veteran has stated that he began to lose weight shortly after the in-service personal assault. Under 38 C.F.R. § 3.304 (f) (5), such evidence may be sufficient to corroborate the Veteran's account of the stressor incident. Therefore, there is evidence of a current disability, indication of an in-service event or injury, and an indication that the current disability may be associated with the Veteran's service. However, the record does not contain sufficient competent medical evidence to make a decision on the claim. In light of the above, the Board finds that the low threshold for providing a VA examination has been met. See McLendon, 20 Vet. App. 79. Accordingly, the case must be remanded so that the Veteran may be afforded a VA examination to provide a diagnosis for any current acquired psychiatric disability, and an opinion as to whether any diagnosed acquired psychiatric disability is causally related to the Veteran's service. Service Connection for Hypertension and Erectile Dysfunction The Veteran contends that his hypertension and erectile dysfunction are secondary to his PTSD. The Board finds that the claims for entitlement to service connection for hypertension , to include as secondary to an acquired psychiatric disorder, to include PTSD, and entitlement to service connection for erectile dysfunction, to include as secondary to an acquired psychiatric disorder, to include PTSD, and/or hypertension, must be remanded as the issues are inextricably intertwined with the remanded claim for service connection for an acquired psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered). Finally, in a February 2014 correspondence the Veteran's representative noted there were outstanding private treatment records and submitted a VA Form 21-4142. However, there is no evidence that the RO attempted to obtain the described records. As such, there may be outstanding private treatment records relevant to the issues on appeal. Therefore, on remand, the Veteran should be provided an opportunity to identify any outstanding treatment records relevant to the issues on appeal and to provide authorization for release of such records to VA. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to VA, to identify all outstanding treatment records from all providers, relevant to the disabilities at issue, and to provide authorization for release of such records to VA. All attempts to obtain the identified records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. Allow an appropriate amount of time for response and complete any additional development resulting from the Veteran's response. 2. After the above development is complete, schedule the Veteran for a VA examination to determine the nature and etiology of each diagnosed acquired psychiatric disability, to include PTSD, somatoform disorder, panic disorder and depressive disorder, NOS. Provide a copy of this remand and the claims file to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Identify all psychiatric disabilities demonstrated proximate to, and/or during the appeal period. If PTSD, somatoform disorder, panic disorder or depressive disorder, NOS is not diagnosed, then the examiner must provide a supporting explanation and address the prior diagnoses for these acquired psychiatric disabilities of record. b) The examiner must elicit from the Veteran a detailed history of the alleged in-service personal assault, and review the Veteran's service treatment records and post-service medical and psychiatric history. Based on a the review of the record and the results of the examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran exhibited symptoms and/or behavioral changes expected to follow from the claimed personal assault. In this regard, the examiner should specifically comment on the Veteran's claimed weight loss after the in-service event. Other behavioral changes that may constitute credible evidence of a personal assault include, but are not limited to, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks or anxiety without an identifiable cause; and unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f) (5) (2017). c) If there is a verified military service stressor, the examiner must determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner must then opine whether it is at least as likely or not (50 percent probability or greater) that the PTSD is etiologically related to any verified in-service stressor, including personal assault. d) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder other than PTSD demonstrated since service, even if currently resolved, had its onset in service or is otherwise causally or etiologically related to the Veteran's service. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted for a psychiatric disability, to include PTSD, and thereafter, whether service connection may be granted for hypertension, to include as due to a psychiatric disability (to include PTSD), and whether service connection may be granted for erectile dysfunction, to include as secondary to a psychiatric disability (to include PTSD) and/or hypertension. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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). 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). _________________________________________________ U. R. POWELL 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).