Citation Nr: 0830517 Decision Date: 09/09/08 Archive Date: 09/16/08 DOCKET NO. 01-09 671A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for multiple sclerosis. 2. Entitlement to service connection for headaches. 3. Entitlement to a higher initial evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Jonathan R. Wise, Attorney at Law ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from April 1977 to February 1982, with subsequent service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2000 and April 2003 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The September 2000 determination denied service connection for multiple sclerosis, to include rectal incontinence, and for headaches. The April 2003 determination granted service connection for PTSD and assigned it a 30 percent rating effective from June 30, 2000. The Board rendered a decision on the claims in April 2006, but that decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in April 2008, and remanded for further action. 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 Unfortunately, remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. A March 2008 joint motion to the Court indicates that after the Board's April 2006 decision was rendered, the veteran's counsel produced VA-generated medical records pertinent to his claims that had not been in the veteran's claims folder. The joint motion correctly indicates that these records were constructively before VA when the Board rendered its decision. See Bell v. Derwinski, 2 Vet. App. 611 (1992). These records should be considered by the RO. Additionally, the joint motion indicates that it is not clear whether the records submitted by the veteran constitute the entirety of his VA records, and indicated that the Board should therefore ensure that all records are associated with the veteran's claims file. The veteran's most recent VA psychiatric examination which was considered by the Board in April 2006 was conducted in June 2005, more than 3 years ago. Another VA examination which has not been considered for rating purposes was conducted in August 2006. It is unclear what the level of symptomatology of his PTSD has been since then. Accordingly, another VA psychiatric examination should be conducted. Next, since the Board's April 2006 decision, there has been submitted additional relevant evidence concerning the relationship between the veteran's service and his multiple sclerosis. A November 2006 letter from a VA physician indicates that attacks of vertigo the veteran had in service in February and September 1978 were consistent with the initial manifesting symptoms of multiple sclerosis. In July 2008, Craig M. Bash, M.D., a private physician, indicated that he agreed with the VA physician's assessment. He also indicated that the veteran had had many episodes in service of waxing and waning hearing and vision abilities, and indicated that this is well known to occur in multiple sclerosis. The VA neurology examiner who examined the veteran in September 2002 addressed only the matter of whether exposure to toxic substances in service caused the veteran's multiple sclerosis. Another VA neurology examination should be conducted. Accordingly, the case is REMANDED for the following action: 1. Ensure that all records pertinent to the veteran's claims are associated with his claims folder. Ask the veteran to identify by date and location any other private and VA medical records which are not contained in the claims folder. Obtain any VA and private medical records of treatment the veteran has received which are so identified. 2. After receipt of any additional records, schedule the veteran for a VA psychiatric examination in order to determine the severity of the veteran's service-connected PTSD. The claims folder should be provided to the examiner for review. All indicated tests, studies and interviews should be conducted. Following examination of the veteran, the examiner should identify the symptoms, if any, and their severity, which the veteran currently manifests or has manifested in the recent past that are attributable to his service- connected PTSD. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the veteran's PTSD on his social and industrial adaptability. In so doing, the examiner is asked to address his or her findings in the context of the veteran's work, social, and educational history. The examiner should assign a Global Assessment of Functioning (GAF) score for the veteran's PTSD 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 must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the examiner's conclusions. 3. A VA neurology examination should be conducted for the veteran's multiple sclerosis claim. Provide the examiner with the claims file. All necessary special studies or tests are to be accomplished. The examiner is to review the claims folder, including the service medical records, and all post- service records. The examiner must express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the veteran's multiple sclerosis had its onset during active service or is related to any in-service disease or injury. Consideration of whether the veteran's in-service vertigo and hearing and visual fluctuations were manifestations of his multiple sclerosis should be discussed, as should the opinions of the VA physician and Dr. Bash rendered in November 2006 and July 2008 respectively. Reasons why the examiner agrees or disagrees with those opinions should be given. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. Finally, readjudicate the veteran's pending claims in light of all additional evidence added to the record. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2008). _________________________________________________ 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).