Citation Nr: 22003533 Decision Date: 01/24/22 Archive Date: 01/24/22 DOCKET NO. 18-08 270 DATE: January 24, 2022 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a temporomandibular joint (TMJ) disability is remanded. PRELIMINARY MATTERS The Veteran served on active duty from September 2010 to March 2014. This matter comes before the Board of Veterans' Appeals (Board) from December 2015 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his January 2018 substantive appeal. A hearing was scheduled for March 2020, and the Veteran and his attorney were notified accordingly in January 2020. However, in a February 2020 e-mail, the attorney withdrew the hearing request. In a February 2019 docketing letter, the Board notified the Veteran and his attorney that that they had 90 days from the date of the letter or until the Board issued a decision in this appeal (whichever came first) to submit additional argument or evidence. See 38 C.F.R. § 20.1305(a). In prior, October 2018 correspondence, the attorney had asked the Board to wait the full 90 days before issuing a decision in this appeal. As the 90-day period after the February 2019 Board docketing letter has elapsed, the attorney's October 2018 request is moot. Initially, the Board has characterized the PTSD claim as an original service connection claim for PTSD, as opposed to a petition to reopen a previous, final denial per 38 C.F.R. § 3.156. In May 2012, before the Veteran separated from active duty, he filed multiple VA disability compensation claims, including service connection claims for anxiety disorder, PTSD with depression, and attention deficit disorder (ADD). See May 2012 VA Form 21-0819, VA/Department of Defense (DoD) Joint Disability Evaluation Board Claim. A January 2014 rating decision issued under the VA / DoD Disability Evaluation System (DES) program (in pertinent part) proposed to establish entitlement to service connection for adjustment disorder with mixed anxiety, depressed mood, insomnia, attention deficit / hyperactivity disorder (ADHD), and alcohol abuse in remission (claimed as PTSD, ADD, and sleep disturbances). A January 2014 notification letter explained that the proposed decisions under the VA / DoD DES program were not final, and that a final rating decision would be provided upon discharge from active duty. As the January 2014 rating decision was not a prior, final decision adjudicating entitlement to service connection for various psychiatric disabilities (claimed in part as PTSD), the October 2014 service connection claim for PTSD currently on appeal is not a petition to reopen; therefore, new and material evidence is not required. The Veteran's attorney contends that the service connection claim for PTSD currently on appeal encompasses the issues of entitlement to an increased initial rating for a service-connected anxiety disorder and entitlement to a total disability rating due to individual unemployability (TDIU) under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Specifically, the attorney argues that the Veteran filed the service connection claim for PTSD because he believed he was not being adequately compensated for his service-connected, non-PTSD psychiatric disability (anxiety disorder), and the Veteran believed that a PTSD diagnosis was needed for an increased rating. "Since [the Veteran] has neither the medical nor legal expertise to know what his clinical psychiatric disability consists of and how to go about getting an increase for it, his claim cannot be restricted to the face of his claim." See March 2020, September 2021 correspondence. The Board disagrees and finds that the issues of entitlement to an increased initial rating for the service-connected, non-PTSD psychiatric disability (anxiety disorder) and entitlement to a TDIU are not currently on appeal for the following reasons. First, the Veteran did not file a valid Notice of Disagreement (NOD) regarding any aspect of the January 26, 2016 rating decision's grant of entitlement to service connection for an anxiety disorder, including the downstream issue of the assigned initial disability rating. Since March 24, 2015, NODs with AOJ adjudicative determinations had to be filed on standard forms that met certain requirements. "For every case in which the [AOJ] provides, in connection with its decision, a form for the purpose of initiating an appeal, a [NOD] consists of a completed and timely submitted copy of that form." 38 C.F.R. § 19.21(a)(1) (previously § 20.201). "If the [AOJ] gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified to the extent a form provided pursuant to paragraph (a)(1) of this section so requires. If the claimant wishes to appeal all of the issues decided by the [AOJ], the form must clearly indicate that intent. Issues not identified on the form will not be considered appealed." Id. § 19.21(a)(4) (previously § 20.20) (emphasis added). Here, in the December 31, 2015 rating decision (with a January 11, 2016 notification letter), the AOJ denied service connection for PTSD (in pertinent part). In a separate, January 26, 2016 rating decision (with a February 1, 2016 notification letter), the AOJ: granted service connection for anxiety disorder with mixed anxiety and depressed mood, and assigned an initial disability rating of 30 percent effective March 16, 2014; and denied service connection for TMJ (in pertinent part). The Veteran filed two October 2016 NODs: one noting disagreement with the January 11, 2016 rating decision's denial of service connection for PTSD only ("first NOD"); and another noting disagreement with the January 26, 2016 rating decision's denial of service connection for TMJ only ("second NOD"). Regarding the first NOD, although the Veteran noted "100" in Section 11, Box C. (Percentage Evaluation Sought), the only box he checked in Box B. (Area of Disagreement) was "service connection." His specific contentions in Section 12A expressly related to the issue of service connection for PTSD. In addition, in Section 10, Notification / Decision Letter Date, he clearly specified January 11, 2016, the date of the rating decision denying service connection for PTSD. Regarding the second NOD, the only issue in the January 26, 2016 rating decision with which the Veteran noted disagreement was the denial of service connection for TMJ. The February 1, 2016 notification letter accompanying this rating decision clearly explained the Veteran's appeal rights, including and very detailed directions for completing the enclosed NOD (VA Form 21-0958). For example, this notification letter included a document entitled "SPECIFIC INSTRUCTIONS FOR THE NOD," which explained how to complete the "Specific Issues of Disagreement" section of the VA Form 21-0958. That document explained, "If VA granted a benefit, but you disagree with the evaluation that we assigned, check the 'Evaluation of Disability' option." That the Veteran timely completed and filed the second NOD which clearly specified only one are of disagreement with the January 26, 2016 rating decision shows he was able to follow directions and navigate the appeal procedure. In summary, the Veteran did not note disagreement with any downstream issues in the January 26, 2016 rating decision's grant of service connection for an anxiety disorder (including the initial rating assigned), despite ample notice of the requirements for a valid NOD. Therefore, VA cannot accept either October 2016 NOD as a valid appeal of the initial rating assigned for the service-connected anxiety disorder (or a TDIU claim). Finally, Clemons does not apply to this situation because that case addressed the scope of service connection claims for acquired psychiatric disabilities. It did not hold or suggest that VA must broadly construe an appeal of a denial of a service connection claim for a specific psychiatric disability to include an implied increased rating claim (or TDIU claim) for another, already service-connected psychiatric disability. REASONS FOR REMAND The appeal is remanded to afford the Veteran procedural due process. The Agency of Original Jurisdiction (AOJ) obtained additional, pertinent evidence after the December 2017 Statement of the Case (SOC), but before it transferred the claims file to the Board in February 2019. The Veteran's attorney attempted to waive the Veteran's right to initial AOJ review of this evidence under 38 C.F.R. § 20.1304(c) (now § 20.1305(c)). See, e.g., March 2020 and September 2021 correspondence. However, the cited waiver regulation only applies to "pertinent evidence submitted by the appellant or representative." There are no waiver provisions in VA regulations for pertinent evidence that the AOJ obtained before it transferred the file to the Board. Thus, the Board must remand the appeal for the AOJ to issue a Supplemental Statement of the Case (SSOC) that considers such evidence in the first instance. See 38 C.F.R. § 19.31(b)(1). Remand is also required the following development. 1. Service connection for PTSD Stressor verification: Other than obtaining the Veteran's STRs and service personnel records, there is no indication that the AOJ attempted to verify his multiple claimed in-service stressors, including the following: The Veteran reported a "hostile work environment" involving alleged harassment and bullying by NCOs and fellow service members, e.g., incident when NCO reportedly assaulted him and put him in a chokehold or "sleeper hold;" incident when NCO reportedly "jumped on a desk and got right in my face" (see, e.g., July 2013 VA examination, history; September 2014 VA mental health initial evaluation note; October 2014 VA mental health triage note; July 2015 PTSD stressor statement; October 2011 STR generally noting complaints of "toxic" work environment and harassment). The Veteran reported that in spring 2011 or March 2012, college-aged males "jumped" the fence of his base in Washington; he reported that one of them went in his backyard with a gun, and that the Veteran saw "the gun in his hand;" Veteran stated that this male was arrested (see, e.g., December 2015 VA PTSD examination, Remarks, Stressor 1; July 2015 PTSD stressor statement). The Veteran reported that in spring 2011, an MP (military police) found another MP who was shot dead inside his home; Veteran stated that he moved his family off-post until December 2011 because this incident had made him feel unsafe on base (see, e.g., December 2015 VA PTSD examination, Remarks, Stressor 2). The Veteran reported that in January 2012, a soldier in his unit shot his two children, his wife, and himself while the soldier and his family were inside of a car; Veteran reported that he "heard the gunshots and [the soldier] coming through the fence" in the car, and that he witnessed the bodies of the wife and the soldier inside of the car after both had been shot in the head; he reported that MP arrived at the scene (see, e.g., December 2015 VA PTSD examination, Remarks, Stressor 3). The Veteran reported that in May 2012, when he was "doing a PT test" on his base, "everyone started yelling active shooter;" he stated that he witnessed another soldier who got shot "right in the chest" and recalled that another person was shot in the kneecap; he also recalled that the shooter "ran past us" (see, e.g., December 2015 VA PTSD examination, Remarks, Stressor 4; July 2015 PTSD stressor statement). The Veteran reported that in summer 2013, his neighbor confessed to killing his (the neighbor's) stepbrother; the Veteran stated that he interacted with the criminal investigation division (CID) in connection with this alleged homicide (see, e.g., December 2015 VA PTSD examination, Remarks, Stressor 5; July 2015 PTSD stressor statement). The Veteran reported that in summer 2013, an NCO "cut his wife's throat from ear to ear;" he stated that he and Sergeant H. both noticed a person laying on the ground in the NCO's backyard and the NCO was standing in the backyard with a loaded gun; Veteran recalled seeing NCO's wife's body on the ground and that MP were called (see December 2015 VA PTSD examination, Remarks, Stressor 6). Personal assault stressor notice: One of the claimed in-service stressors involves an alleged personal assault against the Veteran (see summary of alleged NCO chokehold episode above). Therefore, the RO must notify the Veteran of evidence that may constitute credible supporting evidence of that stressor and allow him the opportunity to furnish such evidence, or advise VA of potential sources of such evidence, as required by 38 C.F.R. § 3.304(f)(5). Service personnel records: Although the RO obtained some of the Veteran's service personnel records, they appear to be incomplete. Specifically, they do not include the Veteran's complete performance and disciplinary records. Such records are especially pertinent because the Veteran contends in part that he has a current PTSD diagnosis related to alleged bullying and harassment by NCOs and fellow service members that created a "toxic" or "hostile work environment." See multiple mental / behavioral health STRs (e.g., November 2011 note: Veteran described "hostile work environment" during mental health treatment; August 2013 chart review by military psychologist: Veteran reported "hostile work environment" and harassment by cliques of people in motor pool); June pre-discharge 2012 VA examination (Veteran reported Sergeant targeted him and accused him of lying, and that he [the Veteran] was written up six times for this; Veteran reported that he attempted to switch units due to these issues). Private treatment records: STRs and post-service VA treatment records reference mental health care with primary care physician Dr. F. See, e.g., January 2011 STR; January 2016 VA psychiatry note. The RO should attempt to obtain authorization and request these relevant medical records. VA examination and medical opinion: In September 2021, the Veteran submitted correspondence from his former Platoon Sergeant, R.D., which generally corroborates the Veteran's reports that another solider in his unit committed suicide during service, and describes this event's impact on the Veteran's mental health during active service. Moreover, there is conflicting medical evidence of record regarding whether the Veteran has a current PTSD diagnosis. The AOJ must obtain another VA examination and medical opinion to address this conflicting evidence; and if the examiner concludes that the Veteran has a current PTSD diagnosis, (s)he must opine whether this verified in-service stressor (and any other stressors that the AOJ may verify on remand) is / are sufficient to support that diagnosis. 2. Service connection for a TMJ disability Service treatment records (STRs): The Veteran contends that he has a current TMJ disability due to trauma from wisdom tooth removal surgery during basic training. See, e.g., December 2015 VA examination; October 2016 Notice of Disagreement. The RO previously obtained many STRs, including an April 2014 oral evaluation note. No STRs in the file document this surgery. However, the Veteran's full dental STRs, including records of the reported surgery, are not of record. The RO must attempt to obtain them. VA medical opinion: If and only if any newly obtained evidence shows a current TMJ disability and suggests that it may be associated with an injury or event during active service, such as the reported in-service wisdom tooth removal surgery, then the AOJ should obtain a nexus opinion. As this appeal has been advanced on the Board's docket, expedited processing is requested. The matters are REMANDED for the following action: 1. Complete all appropriate development to attempt to verify the Veteran's multiple claimed in-service stressors (summarized in detail above). Send the Veteran and his attorney the notice required under 38 C.F.R. § 3.304(f)(5) (regarding evidence that may corroborated claimed in-service stressors based on personal assault). 2. Request all outstanding service personnel records relating to performance evaluations and disciplinary actions. If any records are unavailable and further requests to obtain them would be futile, notify the Veteran and his representative. 3. Request the Veteran's complete dental STRs, including all records of the reported wisdom tooth removal surgery during basic training. Document all attempts to obtain them, including any negative responses. If any records are unavailable and further requests to obtain them would be futile, notify the Veteran and his representative. 4. After obtaining completed releases from the Veteran, request all outstanding treatment records from Dr. F. (non-VA primary care physician), and any other private / non-VA providers that the Veteran may identify. Document any negative responses. If any requested records are unavailable, then notify him and his representative. 5. Obtain treatment records from VA Orlando/Lake Baldwin from November 2021 to present. 6. Do not proceed to the following instructions until completing all instructions above, to the extent possible. 7. Schedule the appropriate VA examination and medical opinion. The examiner must review the complete claims file, including this remand. Then, the examiner must address the following, with full supporting rationales: (a.) Does the Veteran have a current PTSD diagnosis (either on examination or based on evidence of record since 2014)? If so, please explain how all diagnostic criteria are met. Please expressly consider conflicting evidence of record: multiple VA treatment records noting PTSD diagnosis (e.g., January 2016, May 2021, November 2021 VA psychiatry notes); February 2017 private PSTD DBQ and opinion by Dr. A.K. (diagnosing PTSD); November 2016 PTSD DBQ by Dr. M.G. (diagnosing PTSD); July 2018 PTSD DBQ by VA treating psychiatrist Dr. R.C. (diagnosing PTSD); but see December 2015 PTSD DBQ (finding Veteran does not meet DSM-5 criteria for PTSD diagnosis); July 2021 VA examination (noting diagnosis of unspecified anxiety disorder and noting VA providers diagnosed PTSD based on his reported stressors). If and only if the examiner finds that the Veteran has a current (2014 - present) PTSD diagnosis, answer the following questions. (b.) Is the evidence in approximate balance (nearly equal) that there is a link between the Veteran's current PTSD symptoms and reported PTSD symptoms during active service? See multiple STRs (e.g., behavioral health notes referencing reported history of PTSD; screening questionnaires note endorsement of PTSD symptoms). (c.) Is the evidence in approximate balance (nearly equal) that there is a link between the Veteran's current PTSD symptoms and the verified in-service stressor involving a soldier in his unit who committed suicide during service (see 09/07/2021 correspondence from former Platoon Sergeant, R.D. recalling this event and its impact on the Veteran's mental health during service)? (d.) If and only if the AOJ can verify any additional in-service stressors, then the VA examiner also must address whether the evidence is in approximate balance (nearly equal) that there is a link between the Veteran's current PTSD symptoms such stressors. If any requested findings are not possible without speculation, the examiner must explain why. 8. If and only if any newly obtained evidence shows a current TMJ disability and suggests that it may be associated with an injury or event during active service (such as the reported in-service wisdom tooth removal surgery), then request a medical opinion to answer the following: Is the evidence in approximate balance (nearly equal) that the Veteran's current TMJ disability is related to active service? The examiner must note his or her review of the complete claims file, including this remand, and provide a full rationale. If the requested opinion is not possible without resort to speculation, then the examiner must explain why. 9. After completing the above and any other development deemed necessary, issue an SSOC that considers all evidence received since the December 2017 SOC. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Janofsky, 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.