Citation Nr: 1007657 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 04-03 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for a right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness; to include as associated with service-connected partial ankylosis, right shoulder, with postoperative arthritis. 3. Entitlement to service connection for a psychiatric disorder claimed as depression, to include as associated with service-connected partial ankylosis, right shoulder, with postoperative arthritis. 4. Entitlement to an increased disability rating for partial ankylosis, right shoulder, with postoperative arthritis, currently evaluated as 20 percent disabling. 5. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied the benefits sought on appeal. In an April 2002 rating decision the RO denied service connection for diabetes mellitus, type II, and denied a claim for an increased disability rating for service-connected partial ankylosis of the right shoulder. The Veteran perfected appeals to the Board on these two denials, and in March 2004 he and his spouse presented testimony before a Decision Review Officer at the RO on these two matters. In a January 2006 rating decision, the RO denied service connection for impaired mobility of the right arm, hand grip weakness. In a February 2007 rating decision, the RO denied service connection for depression. In an April 2009 rating decision, the RO denied entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person. The Veteran perfected claims as to each of these denials. Though the Veteran claimed service connection specifically for depression and this is the specific psychiatric disorder denied by the RO, a claim for a specific psychiatric disability encompasses a claim in general for any psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection specifically for a psychiatric disability of PTSD encompass claims for service connection for all psychiatric disabilities; an appellant generally is not competent to diagnose his mental condition, he is only competent to identify and explain the symptoms that he observes and experiences). The issues of entitlement to (1) service connection for a psychiatric disorder claimed as depression, (2) an increased disability rating for partial ankylosis, right shoulder, with postoperative arthritis, and (3) special monthly compensation (SMC) based on the need for regular aid and attendance of another person, are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent evidence is against a finding that: diabetes mellitus, type II, was present in service; any current diabetes mellitus, type II, is related to service, or that any diabetes mellitus manifested itself to a compensable degree within a year following separation from active duty. 2. The Veteran did not serve on active duty in Vietnam and was not exposed to an herbicide agent including 2,4- Dichlorophenoxyacetic acid (2,4-D). 3. The competent medical evidence demonstrates that a right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness, is related to the Veteran's service-connected partial ankylosis, right shoulder, with postoperative arthritis. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, was not incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 2. The criteria for establishing entitlement to service connection for a right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness, are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Though notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matters decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial, and the Veteran has been provided all information needed for a reasonable person to prove these claims. In any event, the Federal Circuit recently vacated the previous decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 2009). Given the favorable disposition of the claim for service connection for a right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness decided below, any possible deficiencies in the duty to notify and to assist with respect to the current appellate review of that claim constitute harmless error and will not prejudice the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Regarding the claim for service connection for diabetes mellitus, type II, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of several letters dated between October 2001. This letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific rating criteria which would provide a basis for the service connection claims on appeal decided below. The RO has provided adequate notice of how effective dates are assigned. The claims were subsequently readjudicated most recently in supplemental statements of the case in June 2009. To the extent the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided, the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims on appeal decided below. The claimant was provided the opportunity to present pertinent evidence. The record contains service treatment records, and records of medical treatment received privately and from VA, and VA examination reports. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claims, and, as warranted by law. II. Analysis Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). If a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability, shown to be proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Additionally, certain chronic diseases, including arthritis, diabetes mellitus, or organic diseases of the nervous system, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As a threshold requirement, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110. Hence, in the absence of proof of a present disability (and if present, then in the absence of proof of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay statements are considered to be competent evidence when describing the symptoms of a disease or disability or an injury. However, when the determinative issue involves a question of medical causation, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not show that the Veteran possesses medical expertise and he does not argue otherwise. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The claims file shows that in August 2003 the RO requested service treatment records from the National Personnel Records Center (NPRC). NPRC replied in November 2003 that they were unable to locate such records, which either did not exist or were unavailable and further attempts to locate them would be futile. The claims file does contain some service treatment records including reports of service examinations in April 1971 and April 1974. It does not contain others, such as pertaining to the right shoulder injury in service, which is referenced in a treatment note several months later. To the extent that any of the Veteran's service treatment records are, through no fault of his own, unavailable, a heightened duty exists to assist the Veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (where the Veteran's service medical records have been destroyed or lost, there is a duty to advise the Veteran to obtain other forms of evidence). In this case, the VA has made unsuccessful attempts to obtain some of the appellant's service treatment records. The Board concludes the VA's heightened duty to assist the Veteran is satisfied in this case. In such situations, the Board also has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board has done so in the decisions made below. A. Diabetes Mellitus, Type II In addition to the above requirements for establishing entitlement to service connection, VA law also provides for entitlement to be established based on certain legal presumptions if certain requirements are met. Potentially relevant rules include the following. First, as explained above, under the provisions of 38 C.F.R. §§ 3.307, 3.309(a), certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Second, under 38 C.F.R. § 3.307(a)(6), if a veteran was exposed to an herbicide agent during active military, naval, or air service, and has a disease listed in 38 C.F.R. § 3.309(e), such disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The listed diseases include type II diabetes mellitus. 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C.A. § 1116(a)(4); 38 C.F.R. § 3.307(a)(6)(i). But with respect to the diseases listed in 38 C.F.R. § 3.309(e), the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6) only applies to veterans who had active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran maintains that while in the merchant marines, he was in Vietnam during that war. Specifically, he asserts that while in the merchant marines he served on ships that docked in Vietnam where he was exposed to herbicides. He asserts that therefore, he was entitled to service connection for his diabetes mellitus, type II by operation of the statutory presumptions discussed above. However, under the relevant regulations, a veteran is defined as a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable; and does not include membership in the merchant marines for the period in question. See 38 C.F.R. § 3.1, 3.6, 3.7 (2009). While the Veteran is a veteran with respect to his period of active service in the Army from June 1971 to June 1974, he does not claim and the record does not show that he served in Vietnam during that period of active service. In support of his claim, the Veteran submitted a September 1999 letter from the U.S. Department of Transportation, Maritime Administration, showing he was awarded the Vietnam Service bar and medal for his merchant marine service in the U.S. merchant marine between July 4, 1965 and August 15, 1973, in waters adjacent to Vietnam. This document, however, does not show that the Veteran had service in the active military, naval, or air service, which is the necessary service required for the presumptions addressed above. It only shows that he had merchant marine service between the cited dates, in the waters adjacent to Vietnam. Although the evidence shows that the Veteran has been diagnosed with diabetes mellitus, type II, because he bases his claim on exposure in Vietnam while in the merchant marines, by definition, he is not shown to have had active military service in Vietnam. Thus, based on this evidence, the regulations providing for the presumption of exposure to Agent Orange do not apply in this case as to the period during which the Veteran was in the merchant marines; he was not in active military, naval, or air service in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309, 3.313. Even though exposure to Agent Orange cannot be presumed on the basis of active service in Vietnam, if evidence would show that the Veteran was actually exposed to Agent Orange during his active service from June 1971 to June 1974, then diabetes mellitus, type II, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.307(a)(6). In that regard, in a statement received in January 2002, the Veteran's spouse stated that the Veteran was also exposed to Agent Orange during his active duty service period from 1971 to 1974, both within the United States and in Germany. She stated her belief that Agent Orange was used as a weed killer on several Army bases. There is, however, no evidence whatsoever that during his active service from June 1971 to June 1974, the Veteran was exposed to any "herbicide agent": a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C.A. § 1116(a)(4); 38 C.F.R. § 3.307(a)(6)(i). While the use of commercial herbicides is not covered under 38 C.F.R. § 3.307(a)(6)(i) as a presumptive basis for service connection, under Combee v. Brown (see paragraph below), the claim must still be reviewed to determine if service connection can be established on a direct basis. More generally, even if an appellant is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). In this case, the service treatment records on file show no medical evidence in service of any symptoms of diabetes mellitus, type II, or prodromal symptoms, or competent evidence otherwise to suggest any etiological relationship between service and diabetes mellitus, type II, which was first diagnosed in the late 1990s. The first medical evidence of diabetes mellitus, type II, is contained in private treatment records dated in September 1997, more than 23 years after service. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Subsequent private and VA medical records since 1997 reflect a current diagnosis of diabetes mellitus, type II. However, on the question of whether there is an etiological nexus between that disorder and service or service connected disorder, there are no opinions favorable to the Veteran's claim, except that of the Veteran. While the Veteran and his spouse have provided lay evidence of an etiological link to service, VA regards lay statements to be competent evidence of descriptions of symptoms of disease, disability, or injury, but not the determination of an issue involving a question of medical expertise. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); but see Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). The Veteran's opinion in this matter is of little value because the determination involves a question that only medical experts may address. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes mellitus, type II. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Right Arm and Hand Disability The Veteran claims entitlement to service connection for a right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness. Basically he claims that this disability due to his service-connected partial ankylosis, right shoulder, with postoperative arthritis. Service treatment records do not reflect any right arm or hand disability was present in service. A service medical examination in April 1974 does show that the Veteran had residuals of a right shoulder injury and surgery; and soon after service in a December 1974 VA examination report, the examiner diagnosed significant impairment of the right shoulder: partial ankylosis of the right shoulder; secondary to repair for recurrent dislocation, right shoulder, and postoperative infection. Over the years since 1974, private and VA treatment records have shown significant chronic residuals of the right shoulder injury in service, involving complaints of significant pain as reflected in the report of a November 2001 VA examination of the shoulder. During that examination the report concluded with an impression of postoperative periarthritis, right shoulder joint with marked restriction of movement of the right shoulder. At that time the examiner commented that the Veteran did not have much motion in the right shoulder and could not effectively use his right shoulder, a condition existing over the previous 20 years, with increasing pain with movement. During a March 2003 hearing before a decision review officer at the RO, Veteran and his spouse testified that the right arm was not being used (due to the right shoulder disability) and was becoming weaker. During an August 2006 VA peripheral nerves examination the Veteran reported a history of right shoulder dislocation in service, with surgery of fusion of the right shoulder, and some hospitalization for infection. Although the claims file was not available at the time of the examination, on review, the Veteran's reported history regarding the right shoulder injury and treatment is essentially consistent with the evidence of record. The Veteran also reported a history of head injury to the left side after service with resulting weakness on the left face, eighth nerve damage on the left side and weakness on the left side of the body. The Veteran reported complaints of pain in the right upper extremity, heat in the right arm, and an inability to use the right upper extremity since the right shoulder injury and surgery. The Veteran reported complaints that because he was not able to use the right arm, he had been using his left arm more and gets pain in the left arm also. On examination of the right upper extremity, the Veteran was unable to make any movement at the right shoulder, right elbow, or right wrist. He was not able to make any movement of the right thumb or right hand fingers. He was not able to make a right hand grip. On deep tendon reflexes, the left upper extremity was 2+. The Veteran was unable to do this testing in the right upper extremity. Sensory examination revealed impaired pinprick sensation in the entire right upper extremity; and impaired vibratory sensation and position in the right upper extremity. In the left hand there was mild impairment of vibration; position was intact. After examination, the August 2006 VA examination report contains a diagnosis of (1) right upper extremity pain and weakness likely due to status post injury/surgery of right shoulder joint; and (2) status post head trauma with traumatic brain injury with residual left facial paresis, mild left hemiparesis and sensory deficit on the left side. Regarding right hand grip, the examiner opined that the Veteran did not have any grip on the right hand, and this condition was likely due to status post right shoulder condition and unlikely due to the traumatic brain injury. The report of an August 2007 VA peripheral nerves examination contains a discussion of the examiner's review of the claims file with respect to the right shoulder joint problem and right arm/hand symptomatology. In pertinent part, the examiner observed that private treatment records in February 1996 showed that: the Veteran had a closed head injury and damaged hearing in the left ear; and abnormal EEG due to intermittent moderate slowing bilaterally, more on the left; and a diagnosis of dementia due to closed head injury. The August 2007 VA peripheral nerves examination report contains an opinion that: the Veteran had a long-standing right upper extremity/right shoulder joint problem; he still was able to use the right upper extremity with some limitation; and it was likely that the head injury/traumatic brain injury had worsened the right upper extremity function (the EEG showed some lateralizing findings on the left). In order for the Veteran to prevail, it is only necessary that the probative evidence for and against the claim be in relative equipoise. The favorable evidence need not outweigh that which is unfavorable for the Veteran to be entitled to the benefit of the doubt. To deny the claim would require that the evidence preponderate against it. Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The weight to be attached to relevant evidence is an adjudication determination. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board must assess the weight and credibility to be given to the evidence. Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Viewing the evidence objectively, the Board finds that service connection should be granted on the record for right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness. The Board concludes that the evidence, viewed liberally, is at least in equipoise. That is, it is at least as likely as not that the claimed right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness, is proximately due to or the result of the service-connected partial ankylosis, right shoulder, with postoperative arthritis. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness. ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for right arm and hand disability, manifested by impaired mobility of the right arm, hand grip weakness, is granted. REMAND The Veteran claims entitlement to: (1) service connection for a psychiatric disorder claimed as depression, to include as associated with partial ankylosis, right shoulder, with postoperative arthritis; (2) an increased disability rating for partial ankylosis, right shoulder, with postoperative arthritis, currently evaluated as 20 percent disabling; and (3) special monthly compensation (SMC) based on the need for regular aid and attendance of another person. A remand to the RO on these issues is necessary for the following reasons. First, the Veteran was most recently examined by VA for compensation purposes regarding his claim for service connection for a psychiatric disorder in August 2006. The examination report shows that at that time the examiner reviewed the Veteran's medical, occupational, and social history; examined the Veteran; and provided objective findings and three psychiatric diagnoses on Axis I, which indicated different etiologies for the three diagnoses. On Axis I, the report contains diagnoses of (1) dementia associated with head trauma, GAF (Global Assessment of Functioning score) of 40; (2) mood disorder associated with general medical condition, GAF of 40; and (3) post-traumatic stress disorder (PTSD) (associated with beating since the military), GAF of 40. The examiner thereafter opined that all three of these diagnoses were interrelated. As thus stated, these diagnoses and inherent opinions as to associated etiologies are ambiguous with respect to the key question here of whether a psychiatric disorder, claimed depression, is at least as likely as not due to service or a service-connected disability. Though the opinions indicate that the dementia and PTSD are not related to service or a service-connected disability, there is no clarity with respect to the diagnosed mood disorder associated with general medical condition, since the Veteran's medical condition encompasses significant non-service-connected disability (including left shoulder and traumatic brain injury residuals) in addition to his service-connected disabilities of the right upper extremity and shoulder. There are no other opinions which clarify on this matter; therefore a remand is necessary for actions as ordered below, to obtain an opinion as to whether any psychiatric disorder is at least as likely due to service or is proximately due to any service-connected disability. Given the grant above of service connection for additional disability involving the right arm and hand, there is added necessity for a current examination and opinion on this matter. Second, the Veteran is seeking an increased disability rating for his service-connected partial ankylosis, right shoulder, with postoperative arthritis, which is currently evaluated as 20 percent disabling. The last VA examination addressing the condition of that disability and providing findings appropriate to the diagnostic criteria for rating the disability, was in November 2001. There has been a significant number of records of treatment submitted since then showing that the condition due to that disability may have worsened, as asserted by the Veteran and his spouse. Therefore, a current examination is necessary to obtain current adequate findings on which to fairly evaluate the Veteran's right shoulder disability. Also, the last VA examination did not adequately address such factors as pain, weakness, limitation of motion, and atrophy. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59 (2008); DeLuca v. Brown, 8 Vet. App. 202 (1995). Third, the Veteran is seeking entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person. On remand from this decision is the Veteran's appealed claim for service connection for a psychiatric disorder claimed as depression. This service connection issue must be developed and adjudicated prior to resolution of the Veteran's SMC claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180,183 (1991) (pending issues "inextricably intertwined" with an issue certified for appeal are to be adjudicated prior to appellate review). Also, in light of the grant above of service connection for a right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness, further examination is needed to determine the impact of this service-connected disability on the issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person. Furthermore, the Veteran underwent VA examination for purposes of determining the need for aid and attendance in March 2005. At that time the examiner described both service-connected and non-service connected disabilities in evaluating the Veteran's need for aid and attendance. The examination report contains diagnoses implicating both service-connected and non-service connected disabilities: (1) impaired mobility due to service-connected degenerative joint disease of the right shoulder, and recent fracture of the left shoulder (non-service-connected); and (2) organic mental disorder due to head trauma (which is not service connected). Because the examiner attributed the effects to both service- connected and nonservice-connected disabilities, the March 2005 examination report is not adequate for purposes of determining entitlement to these benefits, and the claim must be remanded to obtain an opinion that is based solely on the effects of service-connected disabilities. On remand the RO should afford the Veteran a VA examination to determine the need for regular aid and attendance. The examiner should be requested to issue an opinion as to whether the Veteran's service-connected disabilities result in the need for regular aid and attendance or housebound status. See 38 U.S.C.A. § 1114 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.350, 3.352 (2009). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide information as to the dates of any treatment received since 2007 for any psychiatric conditions, for his partial ankylosis, right shoulder, with postoperative arthritis, and for his now service-connected right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness; and to ask him to furnish signed authorizations for the release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records (not already in the claims folder) from all sources should be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, inform the Veteran of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R § 3.159 (2009). 2. Thereafter, schedule the Veteran for a psychiatric examination, by an appropriate specialist, to determine the nature and etiology of any psychiatric disorder. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. The rationale for any opinion expressed should be included in the examination report. If the examiner determines that it is not feasible to respond to any of the inquiries below, the examiner should explain why it is not feasible to respond. The examiner should review the evidence and examine the Veteran performing all necessary studies. The examiner should elicit from the Veteran a narrative of his history of relevant symptoms during and since service. For any psychiatric disability diagnosed, the examiner should provide a medical opinion as to whether there is a probability of 50 percent or greater (is at least as likely as not) that such psychiatric disability: (i) in the case of an acquired psychiatric disability-began or was permanently worsened during active service, and/or was the result of an inservice injury or disease, or was caused by or aggravated by a service- connected disability; or (ii) in the specific case of a psychosis-became manifested to a compensable degree within one year of separation from active duty, or otherwise is shown to be etiologically related to service or service-connected disability. The examiner should comment on the evidentiary basis for any etiological opinion relating any current psychiatric disability to service or to a service- connected disability. 3. If the ordered mental disorders examination includes a diagnosis of PTSD, and if the Veteran has attributed the disorder to an inservice stressor, then conduct any additional development deemed appropriate by the AOJ, to include any appropriate development implied by 38 C.F.R. § 3.304(f) (2009). 4. Schedule the Veteran for VA examination by an orthopedic specialist to determine the severity of the partial ankylosis, right shoulder, with postoperative arthritis. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. The rationale for any opinion expressed should be included in the examination report. If the examiner determines that it is not feasible to respond to any of the inquiries below, the examiner should explain why it is not feasible to respond. The examination should include range of motion testing pertinent to the right shoulder disability, and all ranges of motion should be reported in degrees. The examiner should report all symptoms such as pain, stiffness, or aching in the area of the part affected should be noted. The examiner should report all other pertinent findings present including any ankylosis of scapulohumeral articulation; other impairment of the humerus (loss of head, nonunion, fibrous union, recurrent dislocation, or malunion); or impairment of clavicle or scapula (malunion, nonunion or dislocation); and any neurological impairment that is part of or due to the partial ankylosis, right shoulder, with postoperative arthritis. The examiner should report the presence of objective evidence of pain, excess fatigability, incoordination, and weakness, as any additional disability due to these factors. The examiner is asked to render an opinion regarding whether: (a) there is residual weakness, pain or limitation of motion, and if so, opine as to the extent of severity of the residual weakness, pain or limitation of motion; (b) there is ankylosis of the affected joint, and if so, describe the nature of the ankylosis in terms of angle in degrees at which the joint is ankylosed; (c) pain could significantly limit functional ability during flare-ups or when the affected joint is used repeatedly over time. This determination should, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare- ups. 4. Prior to actions ordered in the paragraph immediately below, take all actions necessitated by the grant here of service connection for right arm and hand disability manifested by impaired mobility of the right arm, hand grip weakness, including any necessary examination for purposes of rating the service-connected right arm and hand disability. 5. Following all of the requested actions in the paragraphs above, schedule the Veteran for a VA examination by an appropriate specialist to determine if the Veteran has a need for regular aid and attendance due solely to his service- connected disabilities, so as to warrant special monthly compensation (SMC). The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the examiner. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) the Veteran's service-connected disabilities result in physical or mental impairment that render him so helpless as to require the regular aid and attendance of another person. Notify the examiner of the Veteran's service-connected disabilities, and that the effect of nonservice- connected disabilities must be excluded from consideration. All opinions should be set forth in detail and explained in the context of the record. 6. After the requested examinations have been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, it should be returned to the examiner. 7. Conduct any additional development deemed appropriate by the AOJ. 8. Following completion of the above, readjudicate the Veteran's claims. If any benefit sought is not granted, issue the Veteran and his representative a supplemental statement of the case on any such claim. Allow an appropriate period of time for the Veteran and his representative to respond. Thereafter, return the case to the Board for further appellate consideration. 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). These claims 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. 2009). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs