Citation Nr: 1828335 Decision Date: 05/09/18 Archive Date: 05/18/18 DOCKET NO. 14-16 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for residuals of heat casualty. 2. Entitlement to service connection for bilateral carpel tunnel syndrome (CTS). 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to service connection for erectile dysfunction. 5. Entitlement to service connection for a neurocognitive disorder (formerly characterized as organic brain injury). 6. Whether new and material evidence has been received with respect to a claim of service connection for a thoracolumbar spine disorder. 7. Entitlement to service connection for a thoracolumbar spine disorder. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 14, 2015. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1987 to December 1997, June 1999 to January 2000, April to September 2001, and September 2005 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2012, April 2012 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a personal hearing before a Decision Review Officer (DRO), respecting the above issues, in March 2013; a transcript of that hearing is associated with the claims file. The Board previously considered this matter in September 2016, when it remanded the issues on appeal for readjudcation in light of new evidence that had been received. Thereafter, a March 2017 rating decision granted entitlement to a TDIU, effective December 14, 2015. This was not a full grant of the benefit sought. The issue of entitlement to a TDIU prior to December 14, 2015, remains on appeal. About the issue of service connection for a neurocognitive disorder, the Board notes that this issue was previously characterized as organic brain disease, based on the Veteran's claim. The Board has nonetheless recharacterized this issue as a neurocognitive disorder, as this is more consistent with the evidence of record, which expressly shows a diagnosis of neurocognitive disorder. In November 2016, VA received a communication from the Veteran's attorney, Ms. Jan Dils, indicating that she was withdrawing as the attorney of record for the Veteran. See 11/09/2016, Third Party Correspondence. In February 2018, the Board informed the attorney that her motion to withdraw was not proper, as it did not comply with VA regulations regarding withdrawal of representation. See 02/21/2018, Correspondence; see also 38 C.F.R. § 20.608(b)(2). In response to the Board's letter, Ms. Dils submitted a second motion to withdraw in March 2018. See 03/16/2018, Third Party Correspondence. Once again, there is no indication that the attorney notified the Veteran in writing prior to the withdrawal. Furthermore, she has not shown good cause for her withdrawal. See 38 C.F.R. § 20.608(b)(2). Accordingly, the Board concludes that Ms. Dils is the Veteran's representative just for the purpose of this decision. Id.; see also Perez v. Shinseki, 25 Vet. App. 190, 194-95 (2012). The issues of entitlement to service connection for an acquired psychiatric disability, a neurocognitive disorder, a low back disability, carpal tunnel syndrome (left hand), and erectile dysfunction, as well as entitlement to a TDIU prior to December 14, 2015 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A July 1998 rating decision denied service connection for a low back disability; the Veteran did not appeal this decision, and VA did not receive new and material evidence relating to the issue of a low back disability within one year of notice of the denial. 2. Since the last final denial in July 1998, new and material evidence related to the issue of a low back disability has been received. 3. The evidence fails to show that the Veteran has a current disability manifesting as residuals of heat casualty. 4. The evidence shows that the Veteran's carpal tunnel syndrome of the right hand was diagnosed in service. CONCLUSIONS OF LAW 1. The July 1998 denial of service connection for a low back disability became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.104 (2017). 2. New and material evidence has been received to reopen the previously denied claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for residuals of heat casualty have not been met. 38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for service connection for carpal tunnel syndrome of the right hand have been met. 38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claim of service connection for residuals of heat casualty in January 2011, prior to the initial adjudication of his claim. In addition, all identified, pertinent treatment records have been obtained and considered. A VA examination was not provided for the issue of residuals of heat casualty. The Board finds that a VA examination is not warranted as VA treatment records fail to show that the Veteran has a current disability manifesting as residuals of heat casualty. Further, the Veteran has not submitted any competent evidence that he has a current diagnosis. As the evidence does not raise an indication that the Veteran has a current disability that is related to service, VA's duty to provide an examination or opinion is not triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006) (concerning when a VA examination or opinion is necessary); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's claim. Any errors committed were not harmful to the essential fairness of the proceedings, and the Veteran will not be prejudiced by a decision. II. Analysis Request to Reopen Claim of Service Connection for a Low Back Disability As noted in the Board's September 2016 remand, service connection for low back pain was denied in a July 1998 rating decision. The Board has found that the thoracolumbar scoliosis claim currently on appeal is the same claim denied in the July 1998 rating decision. Accordingly, the Board needs to determine whether VA has received new and material evidence to open the previously denied claim. The July 1998 rating decision denied service connection for low back pain, based on a finding that the claimed condition was not incurred in, or aggravated by, service. It was noted that the service treatment records showed no treatment for low back pain/lumbar condition. The Veteran did not appeal this decision, and VA did not receive new and material evidence relating to the issue of a low back disability within one year of notice of the denial. Consequently, the July 1998 rating decision became final. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); Wakeford v. Brown, 8 Vet. App. 239 -40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. Since the July 1998 rating decision, VA has received new and material evidence to reopen the previously denied claim. Significantly, recently obtained VA treatment records show degenerative disc disease of the mid and lower thoracic spine. See, e.g., 03/06/2018, CAPRI, at 276, 436. This evidence establishes that the Veteran's low back disability has progressed since the July 1998 denial. In addition, the Veteran has asserted that he injured his back during a motor vehicle accident in Italy. This report is consistent with service treatment records, which show complaints of low back pain in October 1999, as a result of being struck by a car while crossing a street. 08/19/2014, STR - Medical, at 80. Service treatment records also show complaints of low back pain in November 1995 and March 1997. Id. at 3, 8. Further, the Veteran underwent a VA examination for his back in April 2011. The examiner provided a medical opinion as to the nature and etiology of the Veteran's claimed low back disability. The above new evidence relates to an unestablished element(s), to include a current disability and an in-service event/injury, of the previously denied claim. As such, it raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a). Service Connection 1. Residuals of Heat Casualty The Veteran raised the issue of service connection for residuals of heat casualty in a December 2010 statement. In it, he indicated that after joining the Army National Guard, be began to suffer from incidents of heat casualty, and that he reported these incidents at the time. He stated that he is now more sensitive to heat and sun exposure, and that he suffered two incidents while with the 1257th Transportation Company, some during his combat service in the Persian Gulf, and two more while with the 201st Field Artillery Unit. See 12/02/2010, Correspondence. The January 2012 rating decision noted that service treatment records show episodes of heat exhaustion in June 2004 during a period of active duty for training, but ultimately determined that there is no evidence of a current disability. In an April 2014 statement, the Veteran's attorney at the time disputed the RO's finding that the Veteran did not have a current diagnosis. This attorney indicated that the Veteran did have a diagnosis for the claimed condition, but did provide any details. See 04/18/2014, Form 9, at 5-6. The Board further notes that there is no indication that the Veteran's former attorney is competent to diagnose the claimed disorder. As such, the Board finds this statement is entitled to no weight. VA treatment records show a history of heat stroke around 1991, but are silent regarding current residuals of heat casualty. See 03/19/2012, CAPRI, at 103. Significantly, a September 2011 treatment note reflects that the Veteran denied heat or cold intolerance. Id. at 107. In sum, the most probative evidence fails to show that the Veteran has current residuals of heat casualty. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (disallowing service connection where there was no current disability); Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (stating that a "disability" in VA regulations is "generally associated with the veteran's inability to perform certain acts"); cf. Saunders v. Wilkie, No.2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding that pain alone can serve as a functional impairment and therefore can qualify as a disability). Here, the record does not reflect functional impairment from the Veteran's heat casualty. As such, the Board finds that the preponderance of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the claim for residuals of heat casualty must be denied. 38 C.F.R. §§ 3.102, 3.303. 2. Carpal Tunnel Syndrome (Right Hand) The Veteran seeks service connection for carpal tunnel syndrome (CTS). An April 2011 VA examination show a diagnosis of bilateral CTS. Service treatment records shows that, in May 2001, the Veteran complained of right hand pain. Testing was positive for CTS on the right hand/wrist. CTS was diagnosed. A wrist brace was issued. 08/19/2014, STR - Medical, at 96. The evidence establishes that the Veteran's CTS of the right hand was diagnosed in service. Service connection is warranted on this basis, but only for the right hand. See 38 C.F.R. § 3.303(a) (stating that service connection is warranted when "the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service"). As discussed below, the Board is remanding the issue of CTS for the left hand. ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a low back disability is granted. Service connection for residuals of heat casualty is denied. Service connection for carpal tunnel syndrome of the right hand is granted. REMAND Psychiatric/neurocognitive The Veteran seeks service connection for both an acquired psychiatric disorder and a neurocognitive disorder. See 12/02/2010, Correspondence; 12/20/2011, Third Party Correspondence. He also raised the issue of service connection for a TBI, claimed as residuals of a concussion. See 12/02/2010, Correspondence. That issue, however, has been withdrawn. See 09/29/2016, BVA Decision. As the following evidence shows, the Veteran has multiple mental health diagnoses. VA treatment records show that the Veteran sought VA mental health treatment in February 2008. See 01/12/2011, Medical Treatment Record - Government Facility, at 1. The treatment note for the initial assessment indicates that Veteran first noticed problems with anger at the age of 19. He stated that he entered a rehab program at the time, but that it was not until three years ago that he begun to experience almost daily episodes of extreme anger. Regarding PTSD, the Veteran reported being beaten by his father as a child up until the age of 12. He stated that to this day he will have intrusive thoughts regarding these experiences. The examiner determined that the Veteran did not meet the criteria for generalized anxiety disorder, panic disorder, social phobia, or obsessive-compulsive disorder, major depressive disorder, bipolar disorder, or schizophrenia. Regarding the Veteran's psychiatric history, it was noted that he threatened to commit suicide in 1994, and that his wife at the time had him committed at a Navy hospital in Washington State. Regarding the Veteran's military history, it was noted that the Veteran served in a combat zone in Iraq, but saw no combat or exchanged lethal fire; he did experience a bomb being dropped, but did not fear for his life at the time. The examiner, a physician assistant, diagnosed intermittent explosive disorder, rule out PTSD, and alcohol dependence by history (last use days ago). Id. at 1-3. Further, an OEF/OIF case manager note from April 2008 reflects that the Veteran reported exposure to traumatic events during service in the Persian Gulf. Id. at 6. In detail, he reported seeing dead bodies and witnessing mortars hit his base (which raised concerns about being personally impacted). Id. He also reported seeing a video of soldiers and civilians being injured. Id. An October 2008 VA treatment note from the Clarksburg VAMC indicates that the Veteran had been in psychotherapy at the local Vet Center. Id. at 15; see also February 2009 note, in 03/16/2018, CAPRI, at 367 (indicating that the Veteran had been receiving counseling at the Vet Center for one year). It is unclear whether records from the Vet Center have been associated with the claims file. A February 2009 screen was negative for PTSD. See 01/12/2011, Medical Treatment Record - Government Facility, at 25. An April 2010 depression screen resulted in a score suggestive of mild depression. Id. at 40. Further, a January 2011 treatment note shows a positive screening for PTSD, while an April 2011 treatment note indicates that the Veteran was receiving treatment for signs and symptoms of PTSD. See 05/04/2011, VA examination (mislabeled), at 13 & 56. A September 2011 note reflects that the Veteran was admitted at the Dayton VAMC for suicidal ideation with plan and recent stress secondary to interpersonal and psychosocial stressors. 03/19/2012, CAPRI, at 97. The Veteran reported being suicidal on and off since 2006, after returning from Iraq. Id. The treatment note shows diagnoses of adjustment disorder vs depressive disorder NOS, and alcoholism (currently in remission). Id. at 100. According to a December 2011 psychiatry note, the Veteran left the Dayton VAMC against medical advice and shortly thereafter was hospitalized at the Chillicothe VAMC for suicidal thoughts. See 01/09/2012, CAPRI, at 7. He spent approximately 25 days at Chillicothe's inpatient psychiatry unit. Id. The treating provider diagnosed adjustment disorder with depressed mood, cannabis use, and partner relational problem. Id. at 9. In February 2012, the Veteran underwent a neuropsychological evaluation. See 07/05/2012, CAPRI, at 1-6. Per the relevant report, the evaluation results portrayed an individual who is of likely low average premorbid intellectual functioning and who continues to demonstrate overall low average ability. The examiner noted that the Veteran is diagnosed with neurofibromatosis (a genetic condition), which in some cases is associated with learning disabilities, ADHD, speech/language difficulties, executive functioning difficulties, perceptual disturbances, and aggressive behavior; thus, the findings on present testing may be longstanding. As noted by the examiner, the Veteran reported a 1988 concussion, after he which he was able to return to service and perform duties as assigned. The Veteran also noted that memory difficulties had become more apparent in the last few years. A June 2012 VA psychology note reflects that the Veteran was re-admitted to the Chillicothe VAMC on May 2012 after conflict with his wife. The examiner noted the results of the February 2012 neuropsychological evaluation, as well as the Veteran's history of severe childhood abuse. The examiner diagnosed cognitive disorder NOS, intermittent explosive disorder, alcohol abuse, and rule out PTSD secondary to childhood trauma. See 03/06/2018, CAPRI, at 523-526. A December 2013 treatment note reflects that the Veteran was again admitted at the Chillicothe VAMC for increased depression with suicidal ideation and plan. See 03/06/2018, CAPRI, at 470. More recent VA treatment records show diagnoses of schizoaffective disorder bipolar type, intermittent explosive disorder, alcohol use disorder (continuous), cannabis abuse disorder (continuous), borderline personality disorder, and unspecified intellectual difficulty. See 08/17/2016, CAPRI, at 2. The Veteran underwent a VA examination in April 2011. The VA examiner determined that the Veteran did not have a primary stressor of PTSD and therefore did not meet the DSM-IV stressor criteria. Rather, the VA examiner concluded that the Veteran met the criteria for intermittent explosive disorder and for alcohol abuse, which are not related to the Veteran's service in Iraq. See 04/13/2011, VA examination, at 56 and 58. The VA examiner added that the Veteran's main problem was substance abuse with related behavioral problems of anger. Id. at 58. In January 2013, the Veteran submitted an October 2012 psychological assessment, by Dr. W.C., a psychologist. See 01/16/2013, Medical Treatment Record - Non-Government Facility. Dr. W.C. diagnosed chronic PTSD, major depressive disorder (single episode, moderate to severe), generalized anxiety disorder, rule out panic disorder with agoraphobia, and rule out pain disorder with both psychological factors and a general medical condition (chronic). As noted by Dr. W.C., the Veteran reported that PTSD symptoms began when he returned home from Iraq. Although he has experienced multiple traumas (physical and sexual assault as a child, hit by a truck, physical assault in Spain, and military stressors in Iraq), he reported that his experiences in Iraq triggered his PTSD. Dr. W.C. added that the Veteran suffers with depression and generalized anxiety which are considered secondary to his multiple health issues and trauma symptoms. Id. at 11. In June 2013, the Veteran submitted a February 2012 psychological evaluation, by Dr. S.B.W., a clinical psychologist. See 06/18/2013, Medical Treatment Record - Non-Government Facility. Dr. S.B.W. diagnosed PTSD (chronic and severe), major depressive disorder (single episode, severe, without psychotic features, with melancholic features), generalized anxiety disorder, insomnia related to PTSD, cannabis dependence, alcohol dependence in sustained full remission, and intermittent explosive disorder (provisional). Id. at 11. As noted by Dr. S.B.W., the Veteran indicated that he began having PTSD symptoms shortly after he experienced the trauma associated with his military service, adding that he had been depressed since his tour of duty in Iraq. Id. at 10. In January 2016, the Veteran submitted a December 2015 mental status examination from psychologist J.A., which shows a diagnosis for major neurocognitive disorder due to traumatic brain injury with behavioral disturbances. See 01/11/2016, Medical Treatment Record - Non-Government Facility. J.A. noted that the Veteran suffered a concussion in 1988 during service and that he had a diagnosis of post-concussion disorder. J.A. indicated that the Veteran's 1988 organic TBI represented an exacerbation of a pre-morbid existing condition, marked by significant deterioration in intellectual functioning, adding that his alcohol dependence exacerbates cognitive decline. Id. As shown above, the Veteran has a particularly complicated mental health disability picture and there are clearly divergent opinions as to the nature and etiology of his symptoms. To further complicate matters, the Veteran has a diagnosis of neurofibromatosis type 1. Neurofibromatosis (NF) is a genetic neurological disorder that can affect the brain, spinal cord, nerves and skin. See National Human Genome Research Institute, "Learning About Neurofibromatosis," available at https://www.genome.gov/14514225/. Tumors, or neurofibromas, grow along the body's nerves or on or underneath the skin. Id. Scientists have classified NF into two distinct types: neurofibromatosis type 1 (NF1) and NF2. Id. NF may lead to developmental abnormalities and/or increased chances of having learning disabilities. Id. Though neurofibromas are generally a cosmetic concern for those with NF1, they can sometimes be psychologically distressing. Id. The Veteran also has a history of childhood abuse, as well as a history of alcohol abuse. In view of the above, the appropriate course of action is to remand for a VA opinion that can reconcile the divergent evidence and provide some clarification as to the nature and etiology of the Veteran's current mental health disability picture. Such evidence will assist the Board in adjudicating the Veteran's appeal. The examiner should be aware that the Veteran had four separate service periods: from December 1987 to December 1997, from June 1999 to January 2000, from April to September 2001, and from September 2005 to December 2006. Any medical opinion should consider whether any current diagnosis pre-existed any period of service and, if so, whether it was aggravated during a particular period of service. The Board is also interested in ascertaining whether any pre-existing mental health disability was aggravated during the period from September 2005 to December 2006, as a result of the Veteran's deployment to Iraq. The Veteran has stated that he was exposed to hostile military and terrorist activity in Iraq. See 12/02/2010, Correspondence. As mentioned above, he has also reported mental symptoms (e.g., feeling depressed, suicidal) since returning from Iraq. The Veteran has submitted three statements from friends and relatives, establishing that the Veteran's mood and behavior changed after Iraq. See 12/22/2010 & 03/30/2011, VA 21-4138 Statement In Support of Claim. Thoracic Spine The Veteran also seeks service connection for a thoracic spine disability. At the outset, the Board notes that the Veteran has scoliosis. This condition was noted in the Veteran's October 1997 enlistment examination. If a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder. The veteran, however, may bring a claim for service-connected aggravation of that disorder. In that case, [38 U.S.C.A.] section 1153 applies and the burden falls on the veteran to establish aggravation." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Section 1153 provides that a pre-existing injury or disease will be considered to have been aggravated by service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. VA treatment records show diagnoses of scoliosis and degenerative disc disease of the mid and lower thoracic spine. See 03/06/2018, CAPRI, at 276. Service treatment records show complaints of low back pain in November 1995, March 1997, and October 1999. The latter complaints were related to a motor vehicle accident in Italy, where the Veteran was struck by a car while crossing a street. The Board also notes that, in October 1988, the Veteran was hit by a truck while riding a bicycle, resulting in a head concussion and collar bone fracture. See October 1997 report of medical history, in 08/19/2014, STR - Medical, at 61-62. The Veteran underwent a VA examination for his back in April 2011. The examiner opined that the Veteran's low back disability was not related to service. The examiner indicated that there was no evidence in the service treatment records of a chronic back condition other than the pre-existing scoliosis. The examiner further opined that the scoliosis was not permanently aggravated by service, as there was no evidence that the scoliosis had not progressed since service. The April 2011 VA examination is silent regarding the Veteran's diagnosed degenerative disc disease of the thoracic spine. In addition, the opinion does not address the evidence of complaints of low back pain in service or the Veteran's contention that his back condition was aggravated during service in the Persian Gulf, to include as a result of carrying heavy gear. See 12/02/2010, Correspondence. Therefore, an adequate opinion is not of record and the Board finds a remand is necessary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008). Carpal Tunnel Syndrome (Left Hand) As discussed above, the Board is granting service connection for carpal tunnel syndrome (CTS) of the right hand, based on evidence that it was diagnosed in service. Still at issue is whether service connection is also warranted for the left hand. An April 2011 VA examiner opined that the Veteran's CTS was less likely than not related to service. The examiner noted that there was no evidence of left hand symptoms in service, or complaints of symptoms since service. The examiner suggested that the Veteran's CTS is related to post-service work. The Veteran asserts that his CTS is related to his work as a cook in service, where he continuously cut meat aboard ships, often in refrigerated areas. Service treatment records show that he sought treatment for right hand symptoms and that his right hand was positive for CTS testing. 08/19/2014, STR - Medical, at 96. The April 2011 VA opinion does not show adequate consideration of this lay evidence. Furthermore, it relies on the absence of corroborating evidence to rule out a nexus. For these reasons, an adequate opinion is not of record. See Nieves-Rodriguez, 22 Vet. App. at 301-04. Erectile Dysfunction The Veteran seeks service connection for erectile dysfunction, as secondary to medications for his claimed mental health disability (to include prescribed medications). See 01/11/2012, Third Party Correspondence. The Board will defer adjudication of this issue, as it is inextricably intertwined with the issue of service connection for an acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). TDIU prior to December 14, 2015 (Extraschedular) As noted in the Introduction, the issue of entitlement to a TDIU prior to December 14, 2015, is presently on appeal. The Veteran has indicated that he last worked full-time in December 2010 and that he became too disabled to work in September 2011. See 01/23/2012, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He has asserted that he unemployable due to his psychiatric, neurocognitive, back, shoulder, and respiratory disabilities. He is service-connected for the last two. For the period prior to December 14, 2015, the Veteran's combined disability rating was 50 percent. As such, he does not meet the schedular threshold for a TDIU during that period. See 38 C.F.R. § 4.16(a). There is, however, evidence of unemployability prior to December 14, 2015. Accordingly, the case must be remanded for referral to the Director, Compensation and Pension Service, for a consideration of whether a TDIU was warranted on an extraschedular basis prior to January 8, 2014. See 38 C.F.R. § 4.16(b). Outstanding Service and VA treatment Records As noted above, there are indications that the Veteran received inpatient psychiatric treatment during service, at a Navy hospital in Washington State. The Veteran has stated that this occurred while he was on shore duty in Bremerton, Washington. See 12/02/2010, Correspondence. A VA treatment note indicates that it occurred in 1994. See 01/12/2011, Medical Treatment Record - Government Facility, at 1-3. Service treatment records do not contain any record of inpatient psychiatric treatment at a Navy hospital in Washington State. Similarly, there is no indication that VA has attempted to obtain any such records. On remand, the AOJ should take appropriate action to assist the Veteran in obtaining any available record. Additionally, VA treatment records indicate that the Veteran received psychological treatment in 2008-09 through a Vet Center affiliated with the Clarksburg VAMC, from social worker D. Smith. See February 2009 VA social work note, in 03/06/2018, CAPRI, at 367. VA treatment records do not contain records of such treatment, and there is no indication that VA has attempted to obtain any available records. On remand, the AOJ should take appropriate action in this regard. Accordingly, the case is REMANDED for the following actions: 1. Take all appropriate action to obtain any available records of inpatient psychiatric treatment at a Washington State Navy hospital around 1994. Efforts should include, but not be limited to, directly contacting the pertinent Navy medical facility to determine where psychiatric records from the relevant period are currently stored. If the AOJ is advised that the Veteran's service psychiatric records are located in a place other than the NPRC, then the AOJ should take all appropriate action to obtain a copy of those records and associate them with the claims file. If, in response to a request for records, it is indicated that no records could be located based on the information provided, the AOJ should determine what information is incorrect or incomplete. All attempts to obtain this data, and any responses received, should be documented in the claims folder. If it is determined that the appellant's service treatment records are unavailable or unattainable, he should be notified in accordance with the procedures set forth in 38 C.F.R. § 3.159(e), of the efforts made to obtain the records and of any additional actions that will be taken with regard to his claim. 2. In addition, take appropriate action to obtain records of psychological treatment from 2008, forward, at the Vet Center affiliated with the Clarksburg VAMC. Efforts to obtain those records should be documented and the Veteran should be notified of any failed efforts to obtain them, and allowed the opportunity to provide any missing records. All records received must be associated with the claims file. 3. After completing #1 and #2, schedule the Veteran for a VA psychiatric/neurocognitive examination. Review of the claims file should be noted in the examiner's report. The examiner should address the following: (a) Is there clear and unmistakable evidence (undebatable/near certain) that a psychiatric or neurocognitive disability pre-existed any of the Veteran's four periods of active service? [This may require 4 answers.] If so, is there also clear and unmistakable evidence that the preexisting disability was NOT aggravated beyond its natural progression by the subsequent active service? (b) If a preexisting disability is not found, then is it as least as likely as not (probability of 50 percent or greater) that a psychiatric or neurocognitive disability was incurred in, or related to, any of the Veteran's four periods of active service? The examiner should note that the Veteran has reported inpatient psychiatric treatment (due to suicidal ideation) around 1994, during his first period of service, at a Navy hospital in Washington State. The examiner should also consider lay evidence (both from the Veteran and third parties) indicating that the Veteran exhibited changes in mood and behavior following his deployment to Iraq. The examiner's opinion should show adequate consideration of the Veteran's complex disability picture and history. Further, the opinion should, to the extent possible, reconcile the divergent opinions regarding the nature and etiology of the Veteran's symptoms (summarized above, in pages 9-13). The examiner is to provide a comprehensive medical rationale for any conclusions reached. If the VA examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 4. Additionally, schedule the Veteran for a VA examination with regard to his thoracic spine and left hand disabilities. Review of the claims file should be noted in the examiner's report. With regard to the claimed thoracic spine disability, the examiner is to address the following: (a) Is there clear and unmistakable evidence (near certain) that the Veteran's preexisting scoliosis was NOT aggravated during any of the Veteran's four periods of active service? (b) In the alternative, is it at least as likely as not (probability of 50 percent or greater) that the Veteran's diagnosed degenerative disc disease of the mid and lower thoracic spine was incurred in or related to a period of service? The examiner should note that service treatment records show complaints of low back pain in November 1995, March 1997, and October 1999. The latter complaints were related to a motor vehicle accident in Italy, where the Veteran was struck by a car while crossing a street. Service treatment records also show that, in October 1988, the Veteran was hit by a truck while riding a bicycle, resulting in a head concussion and collar bone fracture. The examiner should also address the Veteran's contention that his thoracic spine disability was aggravated by heavy lifting during service in Iraq. The VA examiner is to offer an opinion that shows consideration of the relevant evidence and includes a comprehensive medical rationale for any conclusion reached. If the VA examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. With regard to the claimed carpal tunnel syndrome (left hand), the examiner is to address the following: (a) Is it as least as likely as not (probability of 50 percent or greater) that the Veteran's carpal tunnel syndrome of the left hand was incurred in or related to a period of service? (b) If not, is the Veteran's carpal tunnel syndrome of the left hand at least as likely as not proximately due to his service-connected carpal tunnel syndrome of the right hand? If not, then is it at least as likely as not that the carpal tunnel syndrome of the left hand has been aggravated (worsened beyond its natural progression) by his service-connected carpal tunnel syndrome of the right hand? The examiner should address the Veteran's contention that his carpal tunnel syndrome is related to his work as a cook in service, where he continuously cut meat aboard ships, often in refrigerated areas. The VA examiner is to offer an opinion that shows consideration of the relevant evidence and includes a comprehensive medical rationale for any conclusion reached. If the VA examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 5. Thereafter, the Veteran's claim should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration of a TDIU for the period prior to December 14, 2015, i.e., an opinion as to whether his service-connected disabilities precluded him from securing and following gainful employment. 6. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. 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). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs