Citation Nr: 21015520 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-23 407 DATE: March 17, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure and/or mustard gas exposure, is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty for training from March 19, 1962 to September 18, 1962 with service in the National Guard through January 1968. See Certificate of Release or Discharge from Active Duty (DD 214, NOAA 56-16, PHS 1867); (AGRZ Form 105). Service personnel records show training in California, Missouri, Kansas and Nebraska with no service overseas. He was trained and served as a light weapons infantryman and wireman. The Veteran established status as a veteran based on the grant of service connection for hearing loss that was incurred in the line of duty during active duty for training. See September 19, 2016 Deferred Rating (VA Form 21-6789). This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the Veteran’s claims file. In correspondence in January 2021, the Veteran’s representative requested an extension of time for 60 days, specifically until February 28, 2021, to submit additional evidence. Evidence was received later in January. In March 2021, the Board sent correspondence to the representative granting the motion for extension (although the time had already expired) for 60 more days from the date of the letter. The Board finds that issuing this remand does not deny the Veteran the opportunity to submit additional evidence following the development requested below. The Board has recharacterized issues as skin disorder and as acquired psychiatric disorder to address the Veteran’s symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Discussion In an October 2019 decision, the Board denied entitlement to service connection for, among other disabilities, a skin disorder, to include as due to Agent Orange exposure and/or mustard gas exposure, and an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. The Board also denied entitlement to a grant of a TDIU. In pertinent part, the Board found that the evidence of record failed to establish in-service onset or injuries. And, the Board found that the evidence of record failed to disclose that the Veteran’s service-connected hearing loss and tinnitus were of such severity, frequency, or duration to result in total occupational and social impairment. The Veteran appealed the October 2019 Board decision to the United States Court of Appeals for Veteran’s Claims (Court), resulting in a Joint Motion for Partial Remand (JMPR). An October 1, 2020 Court order vacated the portions of the Board’s decision that denied service connection for a skin disorder and an acquired psychiatric disorder. Additionally, the Court order vacated denial of a grant of TDIU. The parties to the JMPR agreed that the Board erred by failing to ensure that VA fulfilled its duty to assist by making reasonable attempts to procure the totality of the private dermatology records of Dr. J., pursuant to 38 U.S.C. § 5103A(b)(2)(B). (misidentified as 38 C.F.R. § 3.156(c)(2) which does not address private treatment records). Additionally, the parties found that the Board did not discuss the Veteran’s PTSD stressor form, which includes various statements about service incidents that caused him to develop a psychiatric disability. By so doing, the parties indicated that the Board did not provide an adequate assessment as to whether the Veteran warranted a VA mental health conditions examination. And, lastly, the parties concurred that the Board misinterpreted the Veteran’s TDIU application by not discussing “tinitis (sic) + Bi Lateral (sic).” The parties found that “+ Bi Lateral” is a reference to bilateral hearing loss rather than traumatic brain injury. To comply with the terms of the JMPR, the Board finds that a remand is necessary for additional evidentiary development. As to VA fulfilling its duty to assist in attempting to procure the totality of the private dermatology records of Dr. J., the Board must direct the RO to follow the procedures to procure such private treatment records in accordance with the provisions 38 U.S.C. § 5103A(b)(2)(B). As to the issues of the probative weight of the Veteran’s stressor statement and a VA mental health examination, the Board now finds that such an issue has been addressed by evidence that was added to the record after both the Board’s October 2019 decision and the JMPR. In a December 2020, a private consultant—LMHC (“licensed mental healthcare counselor”) prepared a report, via VA Form 21-09600-2, in which the consultant provided diagnoses of 1) major depressive disorder with psychotic features secondary to service-connected hearing loss and tinnitus and 2) generalized anxiety disorder with panic attacks secondary to service-connected hearing loss and tinnitus. The consultant reported that these two mental health disabilities, with overlapping symptoms, are productive of total occupational and social impairment. The consultant indicated review of the claims file; checked off a host of attributable symptoms; and reported “sentinel events” of arm (sic) training in service which damaged the Veteran’s hearing. However, the consultant did not indicate how either psychometric testing or interviewing led to the conclusion that “in the final two years of [service], [the Veteran] began experiencing hearing loss and tinnitus and began experiencing depression and anxiety as a result.” See DBQ—Veteran Provided, p. 3. Here, the Board notes that the consultant’s VA Form 21-09600-2 shows that this LMHC is located in Florida, while the evidence of record shows that the Veteran is located in Nevada. Thus, it remains unclear whether, and if so, how, psychometric testing or interviewing took place. The consultant’s VA Form 21-09600-2 provides no guidance to clarify this. And, this consultant did not provide a rationale for the conclusions reached. Thus, the Board finds that a VA mental health examination is warranted on several bases. As evidence of record, the Veteran’s stressor statement (VA Form 21-0781) indicates that a mental health disability or mental health symptoms may be associated with established events in service. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran wrote that his mental health disability (PTSD at the time) can be associated with: 1) a train fire; 2) gas in a building; 3) pesticide exposure during field maneuvers; 4) a flame thrower incident; 5) a simulated atomic bomb explosion; 6) a gasoline explosion; 7) a covered foxhole explosion; 8) acts of biological warfare; 9) acts of guerilla warfare; and 10) fear of dying due to a hand grenade explosion that did not clear a wall. See December 9, 2015 VA21-0781, Statement in Support of Claim for PTSD. Turning to the December 2020 consultant’s VA Form 21-09600-2, a psycho-medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and describes the disability in sufficient detail so that the Board’s “‘evaluation of the claimed disability will be a fully informed one.’” Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The consultant’s lack of guidance concerning psychometric testing and/or psychometric interviewing (and the results derived therein) creates a situation wherein the Board does not have an adequate opinion upon which it can render a fully informed decision. As to the issue of the Veteran’s bilateral hearing loss and a grant of TDIU, the Board acknowledges the January 2021 private vocational assessment report and the rehabilitation counselor’s findings as to the Veteran’s employability. And, the Board accepts the counselor’s opinion that the Veteran’s service-connected bilateral hearing loss and tinnitus present vocational limitations. Nevertheless, the Board finds that this rehabilitation counselor’s reliance upon the consultant—LMHC’s December 2020 VA Form 21-09600-2—diminishes the probative value of this counselor’s report because of the reasons enunciated above. Thus, the Board finds that the readjudication of entitlement to a TDIU must be deferred until the rendering of an adequate VA psycho-medical examination and opinion because this disability has been ineluctably linked, or intrinsically intertwined, with the Veteran’s service-connected hearing loss and tinnitus, by dint of the December 2020 consultant—LMHC and, consequently, by dint of the January 2021 rehabilitation counselor. See Smith (Daniel) v. Gober, 236 F. 3d 1370, 1373 (Fed, Cir, 2001) The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to determine whether the December 2020 consultant—LMHC performed psychometric testing and/or a psychometric interview. If affirmatively indicated, prepare a release, obtain the testing and/or interview reports, and associate the reports with the claims file. During the contact with the Veteran and his representative, ask them to qualify whether findings in the consultant’s December 2020 VA Form 21-09600-2 were derived from in-person, virtual, telephonic, or any other communicative means. 2. Ascertain whether there are any outstanding private treatment records related to skin, hearing acuity, tinnitus, and/or mental health. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. 3. Ascertain whether there are any outstanding VA treatment records. If so indicated, obtain the records and associated them with the claims file. 4. After obtaining the appropriate authorization, request the totality of dermatological treatment records from Dr. J., to include any and all records relevant to whether the Veteran’s dermatitis was caused by a chemical (to include mustard gas, Agent Orange, another dioxin, herbicide agents, and/or pesticides). The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should the RO determine that more than one attempt to obtain these relevant records would be futile, the RO must make a formal finding delineating the steps that have been taken and explain, with specificity, why any further attempts to obtain these relevant records would be futile. Should the totality of Dr. J. dermatological treatment records not be obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 5. Arrange for a VA mental health examination with a VA psychiatrist or psychiatrist. This provider must review the entirety of the claims file and indicate that such review has taken place in the examination report. Upon completion of all necessary psychometric testing and/or psychometric interview, ascertain what mental health diagnosis or diagnoses, if any, are apposite to the Veteran. Reconcile this diagnosis (diagnoses) if any, with the December 2020 private consultant—LMHC’s diagnoses of 1) major depressive disorder with psychotic features secondary to service-connected hearing loss and tinnitus and 2) generalized anxiety disorder with panic attacks secondary to service-connected hearing loss and tinnitus. Should the VA provider find that her/his diagnosis (diagnoses), if any, differ from those of the private consultant—LMHC, please explain why, with references to evidence of record and psychiatric/psychological literature. The Board again brings attention to the Veteran’s statement in which he wrote that his mental health disability (PTSD at the time) can be associated with: 1) a train fire; 2) gas in a building; 3) pesticide exposure during field maneuvers; 4) a flame thrower incident; 5) a simulated atomic bomb explosion; 6) a gasoline explosion; 7) a covered foxhole explosion; 8) acts of biological warfare; 9) acts of guerilla warfare; and 10) fear of dying due to a hand grenade explosion that did not clear a wall. See December 9, 2015 VA21-0781, Statement in Support of Claim for PTSD. Upon completion of the above tasks, the provider is asked to render opinions as to the following inquiries; a. Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current psychiatric disability, if any, was incurred in, aggravated by, or otherwise attributable to, service? AND b. Whether it is at least as likely as not that the Veteran’s psychiatric disability, if any, was proximately caused by either or both of the Veteran’s service-connected disabilities (bilateral hearing loss and tinnitus)? AND c. Whether it is at least as likely as not that the Veteran’s psychiatric disability, if any, was aggravated beyond its natural progression by either or both of the Veteran’s service-connected disabilities (bilateral hearing loss and tinnitus)? For all opinions expressed, complete rationales must be provided. The provider must reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the provider rejects the Veteran’s reports, she/he must provide an explanation for such rejection. 6. Upon completion of all of the above-directed development, the RO should readjudicate the Veteran’s service connection claims for an acquired psychiatric disorder and a skin disorder. After readjudication of these two service connection claims, the RO should readjudicate entitlement to a TDIU. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.