Citation Nr: 1817015 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-05 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968, including service in Vietnam from March 1968 until November 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. On the March 2012 substantive appeal, the Veteran indicated that he wanted a hearing before the Board. The Veteran was sent a notice of the hearing scheduled for May 2016. However, the Veteran cancelled that request for a hearing. The Veteran's representative also submitted an informal hearing presentation brief in June 2016. Therefore, the request for a hearing has been withdrawn. In July 2016, the Board reopened the claim for an acquired psychiatric disorder to include PTSD and remanded the claims for VA examinations. The Board is not satisfied that there has been substantial compliance with the remand's directives with regard to these claims and will remand the claims for additional development. See Stegall v. West, 11 Vet. App. 268 (1998). The appeals are REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Acquired Psychiatric Disorder The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the Veteran claimed service connection for PTSD, in accordance with Clemons, the Board recharacterized the issue on appeal as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety. Specifically, during the November 2016 VA examination, the examiner noted previous diagnoses of depression and PTSD. VA treatment records show a diagnosis of mild anxiety. The Veteran has reported that he has PTSD as a result of various in-service stressor events. In a March 2009 Vet Center intake evaluation, the Veteran reported being exposed to gunfire "all the time." He also reported that he saw people "blown up" as a result of grenades. Further, as a ration truck driver, the Veteran had been told not to stop for any reason. On one occasion, he stated that he had to run over a woman and a girl. The evaluation report indicated that the Veteran presented with symptoms of PTSD. As mentioned above, the Veteran underwent a VA PTSD examination in November 2016. At the examination, the Veteran reported no stressors related to service despite those previously reported. The VA examiner noted that the Veteran was hesitant and perhaps minimizing difficulties. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because the VA examiner failed to consider the already reported in-service stressors, and the recharacterization of the claim, a new examination is necessary. Finally, in November 2016, the AOJ sent the Veteran a letter requesting additional information needed to attempt verification of his reported stressors. The Veteran did not respond to the letter or provide any of the requested information. The Veteran is reminded that, while VA has a duty to assist him in the development of his claims, he also has a duty to cooperate with VA in this effort. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Hypertension The Veteran is seeking service connection for hypertension, to include as secondary to service-connected diabetes mellitus. The Veteran was granted service connection for diabetes in a May 2015 rating decision. In the June 2016 informal hearing presentation, the Veteran's representative indicated that there were various credible medical treatises that confirm the fact that diabetes is a common contributor to the onset or aggravation of hypertension. Several medical articles were included with the representative's brief. The representative specifically asked that the Veteran's claim be remanded to obtain a medical opinion regarding the etiology or possible aggravation of the Veteran's hypertension. In November 2016, the Veteran underwent a VA examination to determine the etiology of his hypertension. Further, an addendum opinion was obtained in March 2017. After, review of the examination and addendum the Board finds both inadequate because they fail to provide rationales sufficient for adjudication purposes as neither opinion addresses the treatise evidence. Barr, 21 Vet. App. 303, 312 (2007). Therefore, remand for a new opinion is necessary. TDIU VA outpatient treatment records reflect that the Veteran last worked in 2003 and further noted that he received disability in September 2003. A subsequent June 2010 VA treatment record clarified that the source of income was SSDI. These records have not yet been obtained. The Board's remand regarding the claims for service connection for an acquired psychiatric disorder and hypertension could potentially have an impact regarding the TDIU issue. Therefore, the issue of entitlement to TDIU is inextricably intertwined with the issues being remanded and adjudication of TDIU must be deferred pending the requested development. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Associate any outstanding VA records with the electronic claims file. 2. Obtain a copy of any Social Security decision awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such Social Security disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by Social Security for the Veteran. All requests for records and their responses should be associated in the claims folder. Any records obtained should be associated with the claims file. 3. Send the Veteran a VA Form 21-8940 and request that he complete it with exact dates for all periods of employment. He should also be advised that he may submit other evidence, such as statements from previous employers or her Social Security earnings record, in support of the TDIU claim. 4. Contact the Veteran and to ask him to provide additional details regarding the reported in-service stressors. Specifically, he should identify the date and location of the incidents and his unit of assignment at the time. 5. If the Veteran provides sufficient information regarding the reported stressors, take all indicated action to verify the claimed stressors, to include contacting the Joint Services Records Research Center (JSRRC). If it is determined that information of record is insufficient to support a request for stressor verification though JSRRC, a Formal Finding of a Lack of Information Required to Document the Claimed Stressor should be prepared. 6. After any records requested above have been obtained, schedule the Veteran for a VA psychiatric examination, to assess the current nature and severity of any current mental health disabilities. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. The examiner should provide the following opinions: a) Does the Veteran have a current diagnosis of PTSD? If yes, is it as likely as not that this disability was incurred due to an event in active service, to include fear of hostile military or terrorist activity that involved actual or threatened death or serious injury to the Veteran or others? b) Does the Veteran have a current diagnosis of depression, anxiety or other psychiatric disorder? If yes, is it as likely as not (50 percent or greater probability) that this disability was incurred in, or due to the Veteran's active military service? A complete rationale for all opinions is required. 7. Obtain a medical opinion regarding the etiology of the Veteran's hypertension. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. If the examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current hypertension had onset in service or is etiologically directly related to active service? b) Is it at least as likely as not (50 percent probability or greater) that the current hypertension is caused by the Veteran's service-connected disabilities, including diabetes mellitus? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that the hypertension is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, including diabetes mellitus? If the VA examiner opines that the hypertension is aggravated by the diabetes mellitus or other service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. In rendering the above opinions, the examiner must comment on the June 2016 medical articles submitted by the Veteran's representative. A rationale should be given for all opinions and conclusions rendered. 8. Thereafter, and after any further development deemed necessary, adjudicate the issue of entitlement to a TDIU and readjudicate the remaining issues on appeal. If any benefit sought on appeal is denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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 (West 2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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).