Citation Nr: 0815141 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-01 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a benign lung tumor, status post thoracotomy. 2. Entitlement to an increased rating for post traumatic stress disorder (PTSD), currently evaluated as 10 percent disabling. 3. Whether the rating reduction from 10 percent to a noncompensable evaluation for a bilateral hearing loss, effective December 1, 2004, was proper, to include entitlement to an increased rating for a bilateral hearing loss, rated 10 percent prior to December 1, 2004. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from December 1965 to August 1974, with earlier periods of service unverified. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was before the Board in January 2007. At that time the Board denied the veteran's claims, and the appellant appealed to United States Court of Appeals for Veterans Claims (hereinafter, "Court"). The Board's decision as to the three issues listed on the first page of this decision was vacated and remanded for additional development in accordance with a Joint Motion for Remand. 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 During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued an Order, based on a Joint Motion for Partial Remand. The Joint Motion noted that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Joint Motion allowed that the VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. See Id. It was indicated that further action by the RO was required to satisfy the notification provisions of the VCAA in accordance with Kent, supra. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Dingess and Hartman v. Nicholson, 19 Vet. App. 473 (2006) (VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim; those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the award). More recently, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which requires additional notice in cases of increased ratings. The Board also observes that notice in compliance with Dingess/Hartman and Vazquez-Flores has not been provided. It was suggested that obtaining additional evidence would be beneficial vis-à-vis the claims for bilateral hearing loss and PTSD. In addition, since it has been approximately four years since the last completed VA audiological and mental disorders examinations, the Board finds that an updated medical examination is necessary in assessing the current severity of the veteran's bilateral hearing loss and PTSD. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should send to the veteran a corrective VCAA notice that explains what constitutes new and material evidence and specifically identify the type of evidence (e.g., an opinion from a medical doctor relating the residuals of any lung tumor disability to the veteran's period of service) necessary to satisfy the element of the underlying claim which was found insufficient in the previous denial, in accordance with Kent, supra. The AMC/RO must also, in light of Dingess, provide notice how a disability rating and an effective date for the claim on appeal would be assigned as well as notice pertaining to increased ratings in compliance with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The AMC/RO should contact the veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA who treated the veteran for benign lung tumor, status post thoracotomy and PTSD and hearing loss since May 2004. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. Thereafter, the veteran should be afforded a VA mental disorders examination by a VA psychiatrist to determine the current severity of his service-connected PTSD. All indicated tests and studies should be accomplished, to include a discussion of any discrepancies suggested by the testing or other examination. The claims folder must be made available to and reviewed by the examiner prior to completing the requested examination report and the examiner must document that such review was undertaken. The examiner is asked, if possible, to determine which symptoms are attributable to his service connected PTSD and which, if any, are attributable to nonservice- connected psychiatric disorders. The examiner should assign a Global Assessment of Functioning (GAF) score for the veteran's depression consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner should indicate whether the GAF score would change if the nonservice-connected psychiatric disorders were included in the assessment. The examination report should include a discussion as to how, if at all, the veteran is limited regarding his daily activities as a result of his disability. The examiner is also requested to indicate which of the following (a), (b), (c) (d) or (e) best describes the veteran's mental impairment: (a) 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 or place; memory loss for names of close relatives, own occupation, or own name; or (b) 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; or (c) 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. (d) Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). (e) Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Adequate reasons and bases should be provided to support the opinion provided. 4. The AMC/RO should schedule the veteran for a VA audiology evaluation to determine the current severity of his bilateral hearing loss. The claims folder must be made available to the audiologist for review, and a notation to the effect that this record review took place should be included in the report. All necessary tests should be conducted. In addition, based on a review of the findings documented in August 2003, May 2004 as well as the current findings, the examiner is requested to discuss as to how, if at all, the veteran is limited regarding his daily activities as a result of his hearing disability at those points in time, respectively. 5. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 6. After the development requested above has been completed to the extent possible, the AMC/RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See 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). _________________________________________________ RENÉE M. PELLETIER 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).