Citation Nr: 1827461 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 15-20 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for stomach disorder, to include gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and L.L. ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1948 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of that proceeding is associated with the record. In July 2017, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for tinnitus. However, in a March 2018 rating decision, the RO granted service connection for tinnitus. The AOJ's grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal, and no further consideration is necessary. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 Regarding the claim for service connection for an acquired psychiatric disorder, the Veteran was afforded a VA examination in January 2018. The examiner stated that the Veteran did not have a mental health disorder and that all previously diagnosed psychiatric disorders had resolved. However, the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). In this case, a February 2013 VA examiner diagnosed the Veteran with depressive disorder, not otherwise specified. Thereafter, VA medical records show treatment with anti-depressant medication. See, e.g., January 2017 VA mental health record. Therefore, a remand is necessary to obtain an additional VA medical opinion. Regarding the claim for service connection for a lung disorder, the Veteran was afforded a VA examination in January 2018. In support of a negative nexus opinion, the examiner stated that there was no evidence of complaints or treatment for a lung condition during service. However, a May 1952 service treatment record noted that the Veteran complained of symptoms of a cold, which the Veteran has contended was pneumonia. See, e.g., June 2015 substantive appeal. Therefore, a remand is necessary to obtain an additional VA medical opinion. In addition, the record reflects that the AOJ submitted a request to the Joint Service Records Research Center (JSRRC) to attempt to verify the Veteran's stressors for his period of service in Korea from March 1951 to November 1951. In a September 2017 response, the JSRRC indicated that it reviewed the histories submitted by the 802nd Engineer Aviation Battalion for the months of May 1951 to July 1951. However, there is no indication that any response was received for the remaining periods of service. Therefore, on remand, the AOJ should ensure that all proper development has been accomplished to verify the Veteran's reported stressors. Furthermore, in August 2017, the Veteran submitted an authorization form for VA to obtain treatment records from the Lexington VA Medical Center (VAMC) dated from 1970 to 1987 and from the Huntington VAMC dated from 1987 to the present. The record reflects that the AOJ requested records from those facilities in August 2017. However, the records appear to be limited to records dated from December 1986. Therefore, the AOJ should attempt to obtain any outstanding VA medical records. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 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. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for GERD, a lung disorder, and an acquired psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records from the Lexington VAMC dated from 1970 to 1986; the Huntington VAMC dated from 1987 to 1994; and any other records dated from July 2017 to the present. If any requested records are not available, the AOJ should clearly document the claims file to that effect and notify the Veteran of any inability to obtain the records, in accordance with 38 C.F.R. § 3.159(e). 2. The AOJ should take all appropriate steps to attempt to verify the Veteran's claimed stressors during his period active duty (burial of mass casualties). Specifically, the JSRRC indicated in a September 2017 response that it reviewed the histories submitted by the 802nd Engineer Aviation Battalion for the months of May 1951 to July 1951. However, there is no indication that any response was received for the remaining period of service from July 1951 to November 1952. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner is also advised that the requirement of a "current disability" is satisfied if a disorder is diagnosed at any time during the pendency of the appeal; even though the disability may resolve prior to adjudication of the claim. The examiner should state whether the Veteran has had an acquired psychiatric disorder at any point since filing his claim in February 2012 or within close proximity thereto. In so doing, he or she should specifically consider the February 2013 VA examination that noted a diagnosis of depressive disorder not otherwise specified. If the examiner finds that there was no disorder during the appeal period, he or she should provide an explanation and reconcile that determination with the prior diagnoses of record. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After any additional records are associated with the claims file, the AOJ should refer the Veteran's claims file to the January 2018 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's lung disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any lung disorders that have been present since the Veteran filed his claim in February 2012. For each lung diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service, to include any environmental exposure or symptomatology therein In rendering his or her opinion, the examiner should address the May 1952 service treatment record noting that the Veteran complained of symptoms of a cold, which he has contended was pneumonia. See, e.g., June 2015 substantive appeal. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS 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).