Citation Nr: 0635511 Decision Date: 11/15/06 Archive Date: 11/28/06 DOCKET NO. 97-31 631 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a claimed post- traumatic stress disorder (PTSD). 2. Entitlement to service connection for the claimed residuals of chest injury. 3. Entitlement to a rating in excess of 60 percent for the service-connected post-operative residuals of fistula in ano. 4. Entitlement to an earlier effective date for a total compensation rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean Ravin, Attorney WITNESS AT HEARING ON APPEAL Dr. C. N. Bash ATTORNEY FOR THE BOARD J. Kang, Associate Counsel INTRODUCTION The veteran served on active duty from December 1964 to December 1970. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a September 1997 and March 1998 decisions of the RO. A hearing was conducted before the undersigned Veterans Law Judge at the Board in March 2006. In March 2000, the Board remanded the case to the RO for additional development of the record. The claims of service connection for PTSD and the residuals of a chest injury were denied, as well as the claim for an increased rating for service-connected fistula in ano and for a TDIU rating. The veteran subsequently appealed this case to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the veteran's attorney and the VA Office of General Counsel filed a Motion requesting that the Court vacate the December 2002 decision and remand the case to the Board for additional development. In a July 2003 Order, the Court granted the Motion, vacating December 2002 decision and remanding the matter to the Board for additional development. In the March 2006 hearing, the veteran, through his attorney, raised the issues of entitlement to special monthly compensation and an earlier effective date for an increased rating for post-operative residuals of fistula in ano. However, the issues of special monthly compensation and earlier effective date for an increased rating have not been adjudicated by the agency of original jurisdiction, and are referred to the RO for appropriate action, to include consideration of Rudd v. Nicholson, No. 02-0300 (U.S. Vet. App. August 18, 2006). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran contends that he has PTSD as a result of his active duty service. Under the regulations, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2006). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In the instant case, there is competent evidence of a current psychiatric disability. The veteran has testified to a continuity of psychiatric symptomatology since service. Further, there is evidence of a questionable diagnosis of PTSD in the veteran's VA treatment records and March 2002 VA examination report. Given the nature of the veteran's psychiatric symptoms and the possibility that he has PTSD, the Board finds that additional development is necessary in order to fairly decide this claim. In March 1997, the veteran supplied a stressor statement; however, the information provided was insufficient for verification purposes. As such, the RO should request specific details of the in- service stressful incident(s): date(s), place(s), unit of assignment at the time of the event(s), description of the event(s), medal(s) or citation(s) received as a result of the event(s), and, if appropriate, name(s) and other identifying information concerning any other individuals involved in the event(s). At a minimum, the claim must indicate the location and approximate time (a 2-month specific date range) of the stressful event(s) in question, and the unit of assignment at the time the stressful event occurred. Inform the veteran that this information is necessary to obtain supportive evidence of the stressful event(s) and that failure to respond or an incomplete response may result in denial of the claim. M21-1, Part III, Para. 5.14(c) (Aug. 12, 2003). Following stressor verification, the RO should then schedule the veteran for another VA examination. With regard to the veteran's service connection claim for chest injury residuals, the veteran's service medical records reflect medical treatment for chest pain from sternum injury sustained in a fight. Post-service, the veteran continued to have chest pain and there is medical evidence of a protuberant xyphoid process. It is unclear whether the veteran receives ongoing treatment for his chest injury residuals. As such, the RO should determine whether there are any outstanding treatment records for the veteran's claimed chest injury residuals, and if so, obtain them and associate them with the veteran's claims file. Thereafter, the RO should schedule the veteran for a VA examination in order to determine the nature and etiology of his chest injury residuals. 38 U.S.C.A. § 5103A(d) (West 2002); Wells, supra. In April 2005, the veteran underwent a VA mental disorders examination. In March 2006, the Board heard testimony offered by a medical specialist. Given the complex nature of the veteran's service-connected disability, the Board finds that another VA examination by a specialist in proctology. The RO should obtain any outstanding VA or private medical records for the veteran's post-operative fistula in ano conditions. The veteran seeks an earlier effective date for the grant of a total disability rating based upon individual unemployability (TDIU). In an October 2005 rating decision, the RO granted a TDIU, effective on January 29, 2004. The veteran, through his attorney, expressed disagreement with the effective date of the TDIU in the March 2006 hearing. However, the Board notes that a Statement of the Case (SOC) has not been sent to the veteran regarding this issue. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court indicated that in a case in which a veteran expressed disagreement in writing with a decision by an agency of original jurisdiction and the agency of original jurisdiction failed to issue a SOC, the Board should remand the matter for issuance of an SOC. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran and request the names, addresses, and dates of treatment or examination, of all health care providers who have treated or examined him for his rectal disability and chest injury residuals. After obtaining any necessary authorization, the RO should request copies of the records of such identified treatment or examinations. 2. The RO should obtain copies of the veteran's treatment records from the VA Medical Center dated from 2005 to present. All records obtained should be associated with the veteran's claims file. 3. The veteran should be provided with an opportunity to provide detailed information about his stressor(s). This should be forwarded to the U.S. Army & Joint Services Records Research Center in order to obtain verification of the claimed events, if possible. 4. Then, the veteran should be afforded a VA psychiatric examination in order to determine the nature and likely etiology of the claimed disorder. If PTSD is diagnosed, then the examiner should identify any stressor(s) that support that diagnosis. 5. The veteran also be afforded a VA examination in order to determine the nature and likely etiology of the claimed chest injury residuals. All indicated testing should be performed. The examiner should elicit from the veteran and record a complete clinical history referable to the reported chest injury. 6. The veteran should be afforded a VA rectal examination to determine the nature and extent of his post-operative residuals of fistula in ano disability. The claims file should be made available to the examiner for proper review of the medical history. The examiner should address the March 2006 testimony and other opinions offered by the veteran's medical expert. All indicated tests and studies should be performed. The examiner should state whether there is any objective evidence of sphincter control problems. If impairment of sphincter control is found, the examiner should state what type of problem is caused by such impairment and should state what measures are taken to deal with the problem. The examiner should provide a rationale for any opinions provided. 7. The RO must take appropriate steps to issue a Statement of the Case concerning the issue of a TDIU rating. All indicated development should be taken in this regard. The veteran should be advised of the time period within which to perfect his appeal. 38 C.F.R. § 20.302(b) (2006). 8. Thereafter, the RO should readjudicate the veteran's claims. If the benefits sought on appeal are not granted, the veteran should be provided with a supplemental statement of the case, and an opportunity to respond thereto. Thereafter, if indicated, this matter should be returned to the Board for the purpose of appellate disposition. 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 (West Supp. 2005). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).