Citation Nr: 21000814 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-11 340 DATE: January 6, 2021 REMANDED Service connection for a left shoulder disability is remanded. Service connection for a right shoulder disability is remanded. Service connection for an acquired psychiatric disability, to include depression, is remanded. Service connection for gout is remanded. Service connection for tension headaches is remanded. Service connection for a heart disability is remanded. Service connection for left upper extremity carpal tunnel syndrome is remanded. Service connection for right upper extremity carpal tunnel syndrome is remanded. Service connection for residuals of asbestos exposure is remanded. Special monthly pension (SMP) based on the need for aid and attendance or by reason of being housebound is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to February 1971. The Board remanded the issues on appeal in December 2018. The Board finds that there has not been substantial compliance with the remand with respect to the claims for service connection for an acquired psychiatric disability, service connection for tension headaches and SMP based on the need for aid and attendance or by reason of being housebound. Therefore, these claims require additional specific development, as discussed below. Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, a letter was sent to the Veteran in error which indicated that he had requested a (Travel) Board hearing and suggested that he consider a virtual tele-hearing as an alternative. However, there is no outstanding hearing request of record. The Veteran requested a Travel Board hearing on an April 2015 VA Form 9 and withdrew the request in March 2018. In November 2020 correspondence, the Veteran's attorney attached medical literature which indicated there were links between gout, arthritis, and CTS and diabetes mellitus. The issue of service connection for diabetes mellitus was remanded by the Board and is currently being developed by the AOJ. The attorney stated that VA should accordingly defer adjudication of the carpal tunnel syndrome, shoulder and gout claims until the claim for service connection for diabetes mellitus is adjudicated because the claims are intertwined. In addition, the attorney specifically stated that the Veteran did not waive his right to initial AOJ review of the newly submitted evidence and requested remand so that the AOJ could consider the newly submitted evidence. With respect to each claim on appeal, evidence indicates that there are outstanding relevant VA treatment records. A July 2020 Supplemental Statement of the Case (SSOC) relates that it reviewed and considered outpatient/inpatient treatment records from the San Juan VA Medical Center (VAMC) and the Ponce Outpatient Clinic (OPC) dated from June 12, 2000 to June 8, 2020. The record before the Board does not include any VA treatment records dated after a July 26, 2019 record from the Ponce OPC, printed August 13, 2019. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 1. Service connection for an acquired psychiatric disability, to include depression, is remanded. The Veteran’s attorney has stated that a new VA examination is warranted with respect to the psychiatric claim because the 2018 VA examination and medical opinion did not adequately address the relationship between the Veteran’s symptomatology and service and/or pain and based on a finding of no mental health history during and after service. However, the examiner noted that the Veteran reported symptoms of depression after having returned from war. Significantly, neither the attorney nor the record identifies a current DSM-5 or prior DSM-IV diagnosis at any time during the course of the appeal, and the 2018 VA examiner did not find a current mental health diagnosis. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (VA has the authority to adopt and apply its rating schedule and has used this authority (in 38 C.F.R. §§ 4.125 and 4.130) to limit compensation for psychiatric disabilities to those with a DSM-5 diagnosis). Accordingly, a new VA examination and opinion are required only if new evidence developed in the course of this remand suggests or includes a DSM-5 diagnosis. 2. Service connection for tension headaches is remanded. The Veteran’s attorney argues that another VA examination is warranted because the Veteran’s statements in a July 2018 affidavit that he had headaches all the time during service but did not seek treatment because he did not want to appear weak indicate continuity of symptomatology and the VA examiner did not address such continuity. However, a statement of symptoms in service does not indicate continuity of symptomatology following service. Further, the Veteran reported to the 2018 VA examiner that “he does not recall the exact time his [headache] symptoms started” and that “[h]e first noted the onset of headaches yet [sic] in the 80s [a number of years after service separation in 1971] that have persisted over the years of variable frequency.” Given that the Veteran reported to the 2019 VA examiner that continuity began in the 1980s and could not recall when his headaches started, such an opinion is not warranted. Based on the inconsistent statements from the Veteran with respect to the onset of his headache symptoms, the Board finds his statements are not credible in this regard. 3. SMP based on the need for aid and attendance or by reason of being housebound is remanded. The Veteran’s attorney argues that remand is warranted as the AOJ failed to afford the Veteran an examination regarding housebound status and permanent need for regular aid and attendance requested in the 2018 remand. The Board agrees. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records for the period from July 26, 2019 to the present. 2. After the outstanding VA treatment records and any additional evidence has been added to the record, ONLY schedule the Veteran for a psychiatric examination by an appropriate clinician to determine the nature and etiology of any psychiatric disorders IF the record contains new evidence suggesting a psychiatric diagnosis at any time since the claim was filed in 2011. The clinician is requested to: (a.) Identify by DSM-5 diagnosis any psychiatric disabilities at any time since the claim was filed in 2011; and (b.) ONLY IF a DSM-5 diagnosis has been provided, i. opine whether it is at least as likely as not such psychiatric diagnosis is related to service, to include reported discrimination in service or fear of being in an accident or killed in service; and ii. opine whether it is at least as likely as not such psychiatric diagnosis is related to chronic pain from service-connected disability/ies; and iii. opine whether it is at least as likely as not such psychiatric diagnosis is aggravated by chronic pain from service-connected disability/ies. In doing so, the clinician must address the Veteran's July 2018 affidavit that during active duty he worried that he would be involved in an accident or killed and was depressed because other sailors harassed him for being Puerto Rican, 2015 VA treatment records showing that he exhibited depression and anxiety symptoms, and literature showing a positive association between depression and racial discrimination, and between chronic pain and depression and anxiety. 3. Please afford the Veteran an examination regarding housebound status and permanent need for regular aid and attendance for pension. 4. After the diabetes mellitus claim has been adjudicated, IF, and ONLY IF, the Veteran is service connected for diabetes mellitus, develop medical opinions which address whether (a) carpal tunnel syndrome (CTS) (b) gout and (c) arthritis of the shoulders is either (a) caused by diabetes or (b) aggravated by diabetes. The examiner is directed to consider and discuss as necessary the medical literature provided by the Veteran’s attorney suggesting a relationship between diabetes and gout, arthritis, and CTS, including associated with a submission identified in VBMS as Medical Treatment Record-Government Facility with a receipt date of Nov. 16, 2020. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, send the Veteran and his attorney an SSOC. M.C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.