Citation Nr: 0810786 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 03-25 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent disabling for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 50 percent disabling. 3. Entitlement to an increased evaluation for bursitis of the right shoulder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from July 1950 to June 1953, September 1953 to July 1956, October 1956 to October 1966, August 1974 to July 1975, and February 1977 to September 1981. The veteran's decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2000 and August 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a July 2003 rating decision, the RO increased the evaluation of the veteran's PTSD to 30 percent, effective March 13, 2002 and increased the evaluation of the veteran's bilateral hearing loss to 30 percent, effective March 10, 2002. In a February 2004 rating decision, the RO increased the evaluation of the veteran's PTSD to 50 percent, effective March 13, 2002 and increased the evaluation of the veteran's bursitis of the right shoulder to 20 percent, effective March 29, 2000. In a June 2005 rating decision, the RO increased the evaluation of the veteran's bilateral hearing loss to 50 percent, effective June 11, 2005. As the veteran has not been granted the maximum benefit allowed, the veteran is presumed to be seeking a 100 percent evaluation and the claims are still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the appellant requested a hearing before a decision review officer (DRO) in connection with the current claims. The DRO hearing was scheduled and subsequently held in February 2004 at the St. Petersburg, Florida RO. The appellant testified at that time and the hearing transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran seeks an initial evaluation in excess of 50 percent disabling for post-traumatic stress disorder; an increased evaluation for bilateral hearing loss, currently evaluated as 50 percent disabling; and an increased evaluation for bursitis of the right shoulder, currently evaluated as 20 percent disabling. In reviewing the record, the Board notes that the veteran was last afforded VA Compensation and Pension (C&P) examinations of the above disorders in June 2005, some two years and nine months ago. Given the long duration of time since the VA C&P examinations, the Board is concerned that they no longer provide an accurate picture of the veteran's current degree of disability. In addition, the reports of the June 2005 VA C&P examinations for joints and for PTSD indicated that the claims folder was not reviewed in conjunction with the examinations, as required by 38 C.F.R. § 4.2. Therefore, the claims must be remanded for current VA C&P examinations regarding the above disorders to be performed. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The veteran is hereby advised of the importance of reporting for any scheduled examination, and of the consequences of failing to so report. See 38 C.F.R. § 3.655 (2007). VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. The record reveals that the veteran was receiving continuous treatment at the Tampa, Florida VA Medical Center. A review of the claims folder reveals that no VA medical records dated after June 2005 have been associated with the claims folder. Accordingly, the Board has no discretion and must remand the claim to obtain the VA clinical records pertaining to the above disorders dated since June 2005. Additionally, in light of the recent Court of Appeals for Veteran's Claims decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the RO/AMC should take this opportunity to provide further notice to the veteran. Accordingly, the case is REMANDED for the following action: 1. Send the veteran notice that includes an explanation as to the information and evidence needed for an increased rating claim, as outlined in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Contact the Tampa, Florida VA Medical Center and request copies of the veteran's treatment records developed since June 2005. These should be obtained and associated with the claims folder. All efforts to obtain these records must be documented in the claims folder. If no additional records are available, it must be so stated, in writing, for the record. Any additional pertinent records identified by the veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the veteran, and associated with the claims file. 3. After completion of the above development, the veteran should be afforded VA C&P audiological, joints, and PTSD examinations to determine the current status of his service-connected bilateral hearing loss, bursitis of the right shoulder, and PTSD. The claims folder and a copy of this remand must be provided to the examiners and reviewed as part of the examinations. The examiners must indicate in the examination reports that such a review occurred. All indicated studies, tests and evaluations deemed necessary by the examiners should be performed. The audiological examination must include the average decibel (dB) loss of each ear, as well as CNC Scores for each ear. The joints examiner should fully describe the degree of limitation of motion of the veteran's shoulder. Any limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance should be described, and the degree of functional loss due to pain should also be indicated. 38 C.F.R. § 4.40 (2007). It should be indicated whether there is more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2007). The PTSD examiner must indicate which of the following rating criteria more closely describes the veteran's degree of impairment: 100 percent: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name; 70 percent: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; 50 percent: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; The examiner should provide a multi- axial assessment. A GAF Score, accompanied by a narrative explanation of that Score, must also be provided. All indicated special studies deemed necessary must be conducted. A complete rationale for any opinions expressed must be provided. 4. Thereafter, the AMC should readjudicate the veteran's claims. If the benefits sought on appeal are not granted in full, the RO should issue the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The appellant 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. 2006). _________________________________________________ L. M. BARNARD Acting 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) (2007).