Citation Nr: 1815892 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 12-33 958A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder and posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for right foot pain, status post fractured fifth metatarsal. 3. Entitlement to a total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico and St. Petersburg, Florida, respectively. With regard to the Veteran's claim for an increased disability rating for right foot pain, status post fractured fifth metatarsal, the Board notes that the Veteran submitted a claim for entitlement to a compensable disability rating for his service-connected right foot pain, status post fractured fifth metatarsal in June 2009 and a September 2009 rating decision continued a noncompensable disability rating. In October 2009, the Veteran again filed a claim for a compensable disability rating for his right foot pain, status post fractured fifth metatarsal, which was denied in a September 2010 rating decision. As the October 2009 claim was received within one year from the September 2009 rating decision, the Board finds that the October 2009 claim must be construed as a Notice of Disagreement (NOD), effectively preserving the Veteran's appeal. As such, the Veteran's appeal for a compensable disability rating for right foot pain, status post fractured fifth metatarsal, stems from the September 2009 rating decision. With regard to the Veteran's claim for service connection for bipolar disorder, by way of history, the Veteran submitted a claim for service connection for a nervous condition in October 1990 and was denied service connection for an antisocial personality disorder in January 1991 due to applicable law preventing compensation for a constitutional or developmental abnormality. In April 2007, the Veteran submitted a claim for entitlement to service connection for depression. In an October 2007 rating decision, the RO recharacterized the claim as entitlement to service connection for bipolar disorder, previously claimed as antisocial disorder, and denied reopening the claim. In October 2009, the Veteran submitted a claim to reopen his claim for entitlement to service connection for bipolar disorder. In the September 2010 rating decision, the RO denied to reopen the Veteran's claim for entitlement to service connection for bipolar disorder, stating that new, but not material, evidence had been submitted. The Veteran timely appealed. The Board notes that in the October 2007 and September 2010 rating decisions, the RO characterized the Veteran's claim as a claim requiring new and material evidence. However, as the claim arose from complaints related to different diagnoses (at the time, depression and bipolar disorders were not considered personality disorders under Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition (DSM-IV)), new and material evidence was not necessary to consider it. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim based on a new diagnosis is to be treated as a new claim, obviating the need for new and material evidence). Therefore, the Board need not determine if new and material evidence has been provided in support of the Veteran's claim. With respect to the Veteran's claim for an acquired psychiatric disorder, the RO has handled the Veteran's PTSD and bipolar disorder as separate issues. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. As such, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and any other diagnosed psychiatric disorders. In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran 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 claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). In the October 2017 Board hearing, the Veteran testified that he suffered from constant foot pain and swelling. He stated that his ability to walk was impaired and he was unable to walk one block. He had to keep his foot elevated often for comfort. Although the Veteran was provided with a VA examination for his right foot disability in May 2016, the Veteran testified that his right foot disability had worsened since the examination. Therefore, as it seems the Veteran's disability may have worsened since his last VA examination, the Board determines that a contemporaneous VA examination is necessary to ascertain the current severity of the Veteran's service-connected right foot pain, status post fractured fifth metatarsal. See Snuffer v. Gober, 10 Vet. App. 400, 408 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). With respect to the Veteran's psychiatric disorders, the evidentiary record shows that the Veteran has been diagnosed with bipolar disorder; PTSD; anxiety disorder, not otherwise specified; depressive disorder, not otherwise specified; mood disorder; paranoid schizophrenia; and psychotic disorder. At the October 2017 Board hearing, the Veteran testified that he developed mental health problems while in service and that he did not have these problems prior to enlistment. He stated that he could not adapt to the environment in service and did not get along with his superior officers and other soldiers. The Veteran testified that he felt he was treated differently in service because of his skin color and made to do demoralizing work as a result. He stated that he realized he needed mental health treatment as soon as he separated from service. The Board notes that the Veteran has not been provided with a VA examination to determine if his psychiatric disorders are etiologically linked to active duty. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the Veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As there is evidence of current psychiatric disabilities and evidence of a link to service, the Board finds that the Veteran should be afforded a VA examination to determine whether the he has a psychiatric disorder that is etiologically linked to active duty service. The Board further notes that in the October 2017 Board hearing, the Veteran's representative asserted that although the Veteran had identified VA treatment records from the Columbus, Ohio and Cincinnati, Ohio VA medical centers (VAMC) as pertinent to his claims, these records had never been associated with his claims file. The representative noted that these records documented treatment the Veteran received following separation from service and established chronicity of care since 1982. Review of the evidentiary record shows that in a December 2010 Authorization for Release of Information, the Veteran did indeed identify records of treatment located at these two VA facilities and that these treatment records have not been added to the evidentiary record. Therefore, all outstanding VA treatment records, to specifically include VA treatment records from the Columbus VAMC and Cincinnati VAMC, should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b). Finally, the decisions on the issues remanded herein may impact the Veteran's claim for TDIU. Therefore, the Board finds these issues to be inextricably intertwined and the Board must remand the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records, specifically to include records from the Columbus VAMC and the Cincinnati VAMC. All obtained records should be associated with the evidentiary record. 2. Send the Veteran a letter requesting any pertinent information to assist VA in attempting to verify any in-service stressors. Attempt to verify the Veteran's claimed in-service stressors using the information provided. This development must include contacting the Joint Services Records Research Center (JSRRC) and providing them with all the information the Veteran has provided and all the pertinent information contained within the evidentiary record. If the JSRRC is unable to verify the claimed stressors and identifies another agency that may be able to do so, the RO must contact the identified agency. All attempts to verify the Veteran's claimed stressors must be documented in the electronic claims file. 3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his service-connected right foot pain, status post fractured fifth metatarsal. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should also discuss the impact, if any, the Veteran's right foot pain, status post fractured fifth metatarsal, has on his activities of daily living, including his ability to obtain and maintain employment. The supporting rationale for all opinions expressed must be provided. 4. After any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of all diagnosed psychiatric disorders. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner is asked to respond to the following: a) Identify all diagnosed psychiatric disorders. b) Determine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired psychiatric disorder present at any point during the appeal period had its onset during active service or is related to any in-service disease, event, or injury. If a diagnosis of PTSD is found, the examiner must note what stressor such diagnosis is based upon. A complete history should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. 5. After completing the above, and 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 claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case 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). These claims 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 (2014). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).