Citation Nr: 0814238 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-25 368A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial increased rating greater than 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to an initial increased rating greater than 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from February 1964 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions dated in April 2005 and February 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Specifically, in the April 2005 rating decision, the RO granted service connection for diabetes mellitus with a 20 percent disability evaluation, and in the February 2006 rating decision, the RO granted service connection for PTSD with a 30 percent disability evaluation. 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 In December 2007, the veteran and his wife submitted statements regarding his claims on appeal. There is no indication of waiver of RO jurisdiction. To ensure that the appellant's procedural rights are protected, insofar as he is afforded the opportunity for RO adjudication in the first instance, the Board must return the case to the RO, with the new evidence, for its initial consideration. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The veteran testified at his November 2007 hearing that he received treatment at the Stigler Medical Clinic for his diabetes mellitus. While records up to August 2006 from this clinic have been associated with the claims folder, more recent records are not of record. The veteran also testified that he was treated at the VA Medical Center (VAMC) in Muskogee, Oklahoma for PTSD. As VA is on notice that there may be additional records that may be applicable to the veteran's, these records are relevant and must be obtained. 38 C.F.R. § 3.159(c) (2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). While the veteran has been afforded examinations for his disabilities (February 2005 examination for diabetes mellitus and February 2006 for PTSD), the veteran testified at his November 2007 hearing that his symptoms have worsened since those examinations. The United States Court of Appeals for Veterans Claims (Court) has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As the current level of disability is at issue, contemporaneous examinations demonstrating the veteran's current level of disability for PTSD and diabetes mellitus must be conducted. Accordingly, the case is REMANDED for the following action: 1. With any necessary authorization from the veteran, the AMC should obtain any outstanding medical records from Stigler Medical Clinic since August 2006. All attempts to secure these records must be documented in the claims folder. 2. The AMC should also associate with the claims file any outstanding records of diabetes and PTSD treatment received at the Muskogee VAMC since February 2005. All attempts to secure these records must be documented in the claims folder. If the records are unavailable, that fact should be noted and the reasons stated. 3. Thereafter, the AMC should afford the veteran a diabetes mellitus examination. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating diabetes mellitus. 4. In addition, the AMC should afford the veteran a PTSD examination. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating PTSD. 5. Thereafter, the AMC should review and readjudicate the claims on appeal, to include any evidence received since the June 2007 supplemental statement of the case (SSOC). If the benefits sought are not granted, the veteran and his representative should be provided with an SSOC. An appropriate period of time should be allowed for response. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2007). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).