Citation Nr: 0810835 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-26 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD), to include on the basis of personal assault. 2. Entitlement to an increased rating for left paravertebral muscle strain, currently evaluated as 20 percent disabling. 3. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from January 1985 to December 1985. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2005 rating action of the VA regional office (RO) in Muskogee, Oklahoma that, among other things, denied service connection for PTSD. That rating decision also denied a rating in excess of 20 percent for left paravertebral muscle strain and a total rating based on unemployability due to service- connected disability. The appellant was afforded a personal hearing at the RO in December 2005. The transcript is of record. Following review of the record, the issues of entitlement to service connection for PTSD, an increased rating for left paravertebral muscle strain and a total rating based on unemployability due to service-connected disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The veteran claims service connection for PTSD. Specifically, he asserts that he was exposed to and experienced traumatic events during active duty, including a personal assault, for which PTSD has been diagnosed. Review of the veteran's service medical records shows no evidence of treatment for any psychiatric disorder. A November 1985 mental status examination conducted in conjunction with the veteran's Chapter 13 discharge from active duty found him to be fully alert and oriented, with an unremarkable affect, clear thinking process, normal thought content, and good memory. He was psychiatrically cleared for Chapter 13 proceedings. However, in the Report of Medical History on service discharge examination in November 1985, the veteran indicated that he had depression or excessive worry. His psychiatric status was evaluated as normal. VA clinical records dating from 1998 show that veteran has been receiving outpatient psychiatric treatment interspersed with VA hospitalization, and has been rendered diagnoses that have included PTSD. The veteran has reported stressors to include falling and being trampled on resulting in back injury, seeing a fellow service member having his right hand blown off by three blasting caps and a physical assault when his sergeant kicked and beat him in the chest and face. He contends that he was brought up on charges and went through summary courts martial even though it was brought out in court that he was the victim. The appellant states that he has nightmares of what he went through during service and that the experiences have detrimentally affected and compromised the quality of his life. As noted previously, service medical records show that the veteran was afforded a Chapter 13 discharge from active duty after approximately a year, and a VA form 00-3101-3 dated in May 1986 indicates that he was barred from re-enlistment. The veteran is asserting in this instance that a major component of his PTSD symptomatology relates back to a personal assault during service. Following a VA outpatient interview dated in August 2006, it was determined that he had PTSD from both childhood and military trauma. Review of the record reflects that PTSD has not been adjudicated based on personal assault. It is noted that neither the veteran's personnel file showing the reasons for his Chapter 13 discharge from active duty, nor the courts martial proceedings which he claims he was subject to is of record. Under the circumstances, the Board finds that further development is warranted with respect to the claim of service connection for PTSD. Additionally, the record discloses that the veteran has not been provided notice of the Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No.106-475, 114 Stat.2096 (2000) with respect to the issue of service connection for PTSD based on personal assault. The veteran must therefore be given the required notice with respect to this aspect of the claim on appeal. Accordingly, the case must also be remanded in order to comply with the statutory requirements of the VCAA in this regard. The veteran asserts that the symptoms associated with his service-connected back disorder are more severely disabling than reflected by the currently assigned disability evaluation and warrant a higher rating. He contends that he no longer has the physical strength and stamina required to obtain or pursue employment and that he is totally disabled on account of service-connected disability. Review of the record discloses that the veteran was most recently afforded VA evaluation of the service-connected low back condition in September 2004. In statements in the records, he indicates that back disability has gotten worse. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran indicates that his service-connected disability has worsened since the last examination, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability has increased in severity); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Additionally, the Court has held that in the case of a claim for a total rating based on individual unemployability, the duty to assist requires VA to obtain an examination which includes an opinion on what effect the veteran's service- connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Given that there has been no assessment in this respect, the Board will remand the case for further examination to determine the current extent of symptomatology associated with the service- connected disorders and a clinical opinion. The fulfillment of the VA's statutory duty to assist the appellant includes requesting VA examination when indicated, conducting a thorough and contemporaneous medical examination when indicated, and providing a medical opinion which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board also notes that the veteran appears to receive regular VA outpatient treatment. The most recent records date through May 12, 2007. The record thus indicates that relevant evidence in support of the veteran's claim may exist or could be obtained from a VA facility. See Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore, VA outpatient treatment records dating from May 13, 2007 to the present should be requested and associated with the file. Accordingly, the case is REMANDED for the following actions: 1. Review the claims files and ensure that all actions required by the Veterans Claims Assistance Act of 2000 (VCAA) are completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007); and the Court's holding in Vazquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. January 30, 2008) and Quartuccio are fully met and complied with, as well as with respect to the issue of service connection for PTSD, to include as the result of personal assault. 2. All of the veteran's service personnel records should be requested and associated with the claims folder 3. After undertaking appropriate development in this regard, to include consideration of the special evidentiary procedures in VA Adjudication Procedure Manual M21-1 Part III, 5.14c relating to personal assault, the RO should readjudicate the issue of entitlement to a service connection for PTSD. 4. Copies of all of the veteran's VA treatment records dating from May 13, 2007 to the present should be retrieved and associated with the claims folder. 5. After a reasonable period of time for all available records and/or responses from the above have been received, the veteran should be scheduled for a VA orthopedic examination, to include a functional capacity evaluation, for purposes of assessing the severity of his service-connected left paravertebral muscle strain. The claims folder and a copy of this remand should be provided to the examiner in connection with the examination. The examiner must indicate whether or not the claims folder was reviewed. All indicated tests and studies should be conducted and clinical findings should be reported in detail. The examination report should reflect consideration of the veteran's documented medical history, current complaints, and other assertions, etc. The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected disabilities. In addition, the examiner should indicate whether, and to what extent, the veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare- ups and/or with repeated use. The examiner should express such functional loss in terms of additional degrees of limitation of motion (beyond that clinically shown). The examiner is requested to opine whether the veteran's service- connected disabilities, including a back disorder, hypertension, and residuals of a scrotal cyst either singly or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete and detailed rationale is requested for the opinion provided. 6. The RO should ensure that the medical report requested above complies with this remand. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned to the examiner for correction. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After taking any further development deemed appropriate, the RO should re-adjudicate the issues on appeal. If the benefits are not granted, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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. 2007). ______________________________________________ F. JUDGE FLOWERS 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).