Citation Nr: 1122546	
Decision Date: 06/10/11    Archive Date: 06/20/11

DOCKET NO.  05-32 366A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a compensable disability rating for tonsillitis.

2.  Entitlement to an initial disability rating higher than 70 percent for posttraumatic stress disorder (PTSD).

3.  Entitlement to an effective date earlier than March 12, 2003, for the grant of service connection for PTSD.

4.  Whether new and material evidence has been received to reopen the claim of service connection for a urinary/prostate disorder.

5.  Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected tonsillitis.

6.  Entitlement to service connection for bilateral hearing loss.

7.  Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran, Veteran's wife


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to August 1970.

This case initially came before the Board of Veterans' Appeals (Board) on appeal from September 2004, November 2007, March 2009 and December 2009 rating decisions of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO).  

In the September 2004 rating decision, the RO, in part, granted service connection for PTSD at a 50 percent disability rating, effective March 12, 2003.

In the November 2007 rating decision, the RO increased the initial disability rating to a 70 percent rating for PTSD, effective March 12, 2003.  As a higher schedular evaluation for this disability is possible, the issue of entitlement to an initial rating in excess of 70 percent for PTSD remains before the Board on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993). 

In the March 2009 rating decision, the RO, in part, continued the noncompensable disability rating for tonsillitis and denied service connection for prostate cancer.

In a December 2009 rating decision, the RO, in part, continued the noncompensable disability rating for tonsillitis and denied service connection for bilateral hearing loss, tinnitus and obstructive sleep apnea, to include as secondary to service-connected tonsillitis.

The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in February 2011.  Transcripts of the hearing have been associated with the claims file.

Of preliminary importance, because the claim for a higher initial rating for the Veteran's service-connected PTSD involves request for a higher rating following the grant of service connection, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for a previously service- connected disability).  

The issue of whether new and material evidence has been received to reopen a claim of service connection for a skin disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.  

The issues of entitlement to an increased disability rating in excess of 0 percent for tonsillitis, entitlement to an initial disability rating higher than 70 percent for PTSD, and entitlement to service connection for bilateral hearing loss, tinnitus, and obstructive sleep apnea, to include as secondary to service-connected tonsillitis, 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.



FINDINGS OF FACT

1.  In an August 2000 rating action, the RO denied a claim for service connection for PTSD; although properly notified, the Veteran did not appeal that determination.

2.  Thereafter, the Veteran's reopened claim for service connection for PTSD was received on March 12, 2003.  There was no earlier formal or informal claim submitted following the unappealed rating action of August 2000.

3.  Entitlement to service connection for a urinary/prostate disorder was denied in April 1986 and September 2006 rating decisions; the Veteran did not file a timely substantive appeal with these decisions and they became final.

4.  The additional evidence received since September 2006 regarding the urinary/prostate disorder is cumulative of the evidence already considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to March 12, 2003, for the grant of service connection for PTSD have not been met.  38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400(b)(2)(i) (2010).

2.  The April 1986 and September 2006 rating decisions that denied entitlement to service connection for a urinary/prostate disorder are final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2010).

3.  The evidence received subsequent to the RO's September 2006 decision is not new and material, and the requirements to reopen the claim of entitlement to service connection for a urinary/prostate disorder have not been met, and the claim is not reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

Regarding the claim for entitlement to an effective date earlier than March 12, 2003, for the grant of service connection for PTSD, the Board notes that the request for an earlier effective date is a downstream issue from the grant of the benefit sought, which was initiated by a notice of disagreement.  The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Moreover, the resolution of the Veteran's appeal for an earlier effective date is also dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits.  Consequently, no further development under the VCAA is warranted.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). 

Regarding the issue of whether new and material evidence has been received to reopen the claim of service connection for a urinary/prostate disorder, the RO provided notice to the Veteran in July 2008, prior to the date of the issuance of the appealed March 2009 rating decision.  

In Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that, if a claimant seeks to reopen a claim that was previously denied, VA must notify the claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information necessary to establish the underlying claim for the benefit sought.  The notification letter must describe what evidence would be sufficient to substantiate the element or elements required to establish service connection that were found insufficient in the prior denial.

In the July 2008 letter, the Veteran was provided the new and material evidence standard that was applicable to the Veteran's application to reopen his claim for service connection for a urinary/prostate disorder.  The letter set forth the reasons for the prior denial of this claim and the type of evidence that the Veteran would need to submit in order to successfully reopen his claim for service connection for a urinary/prostate disorder.  His subsequent assistance in pursuing the appeal demonstrates actual knowledge of what is needed, and further notice or development is not indicated. 

Regarding VA's duty to assist, the Veteran's available service treatment records, private treatment records and VA treatment records have been obtained.  All evidence constructively of record has been secured.  The Veteran has not identified any pertinent evidence that is outstanding.  Notably, in a claim to reopen the duty to assist by arranging for an examination or securing a medical opinion does not attach until the claim has been reopened.  Evidentiary development in this matter is complete to the extent possible.  

Also of record and considered in connection with the appeal are various written statements provided by the Veteran and his representative on his behalf and the Veteran and his wife's February 2011 hearing testimony.  

The Board finds that no additional RO action to further develop the record on the claim for whether new and material evidence has been presented to reopen the claim of entitlement to service connection for a urinary/prostate disorder is warranted.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 


I.  Entitlement to an effective date earlier than March 12, 2003, for the grant of service connection for PTSD.

Law and Regulations

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010) and 38 C.F.R. § 3.400 (2010).  Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  In cases of reopened claim, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a), 38 C.F.R. § 3.400 (2010).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim.  Such an informal claim must identify the benefit sought.  38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999).

VA is required to identify and act on informal claims for benefits.  38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a).  See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 

The Court has held that under VA law there is no basis for a freestanding earlier effective date claim from matters addressed in a final rating decision.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Generally, a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final, if an appeal is not perfected.  38 C.F.R. § 20.1103 (2010).  Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE).  Where evidence establishes such error, the prior decision will be reversed or amended.  38 C.F.R. § 3.105(a) (2010).  A claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits.  Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of CUE).

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2010).


Factual Background and Analysis

The earliest document that can be construed as a claim for service connection for PTSD is the Veteran's formal claim for VA benefits with an accompanying statement in support of claim that was received by the RO on May 26, 1999.  

An August 2000 rating decision denied service connection for PTSD.  The Veteran was notified of the denial in an August 2000 letter.  Although properly notified at his address of record, the Veteran did not file any documents evidencing disagreement with the rating action.

In correspondence received by the RO on March 12, 2003, the Veteran filed a request to reopen a claim for service connection for PTSD.

In a May 2003 letter, the RO instructed the Veteran it needed specific details of the combat related incidents that resulted in PTSD.

In a June 2003 rating decision, the RO denied the Veteran's claim for service connection for PTSD because the evidence submitted was not new and material.  The Veteran was notified of the denial in a June 2003 letter.  

Later in June 2003, the Veteran submitted additional evidence in conjunction for his claim for service connection for PTSD.  He later submitted a notice of disagreement with the June 2003 decision in July 2003.

In a July 2003 rating decision, the RO again denied the Veteran's claim for service connection for PTSD based upon a finding that the evidence received was not new and material.  The Veteran was notified of the denial in an August 2003 letter.  

In August 2003, the Veteran submitted additional evidence in conjunction for his claim for service connection for PTSD.  He later submitted a notice of disagreement with the denial of his PTSD in September 2003.

A September 2004 rating decision granted service connection for PTSD, with an effective date of March 12, 2003.  The RO indicated that March 12, 2003 was the date that the Veteran's claim to reopen was received.

The Board notes that the effective date of an award of service connection based on new and material evidence received after a final adjudication will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  

Based upon the evidence of record, the Board finds entitlement to an earlier effective date for the grant of entitlement to service connection for PTSD is not warranted.  The Veteran did not appeal the August 2000 rating action, and he is considered to have been adequately notified and there is no evidence of a timely notice of disagreement or perfected appeal from that determination.  Nor are there any statements from the Veteran or his representative challenging any prior decision on the basis of an allegation of clear and unmistakable error, and indeed, there is no indication in the record that the prior rating action should be revised due to such error.  Applying the holding in Rudd to the facts of this case, the Board finds that an effective date prior to March 12, 2003 for the grant of service connection for PTSD, is not in order.

Based on 38 U.S.C.A. § 5110(a), the RO assigned the earliest effective date for the grant of service connection for PTSD permitted under the law.  38 C.F.R. § 3.400(b). Under the applicable statutes and regulations, the effective date of service connection is therefore correctly assigned as March 12, 2003, the date of receipt of the reopened claim.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  As described in detail above, the preponderance of the evidence is against the Veteran's claim for an earlier effective date.  The Veteran's claim must be denied on that basis.  



II.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a urinary/prostate disorder.

The Veteran's claim for service connection for a urinary/prostate disorder had previously been considered and was denied in an April 1986 rating decision on the basis that the Veteran's claim was not well grounded as there was no evidence that the Veteran experienced a urinary/prostate disorder in service.

The Veteran did not appeal the April 1986 rating decision and it is final.

The Board notes parenthetically that the provisions of the VCAA provided for readjudication of claims that were finally denied as not well grounded between July 14, 1999 and November 9, 2000, without the need for new and material evidence. Pub.L. 106-475, § 7, Nov. 9, 2000, 114 Stat. 2099.

The Veteran's request to reopen the claim was received in March 2006.  Because the request to reopen was received more than two years after the effective date of the Veterans Claims Assistance Act of 2000, the claim is not subject to readjudication without regard to the prior decision. Pub. L. 106-475, § 7, Nov. 9, 2000, 114 Stat. 2099.

Accordingly, the Veteran is required to submit new and material evidence to reopen the claim for service connection for a urinary/prostate disorder.  38 U.S.C.A. § 5108.

A September 2006 rating decision denied the Veteran's claim for service connection for a urinary/prostate disorder.  This finding was on the basis that there was no medical evidence to relate the Veteran's urinary/prostate disorder disability to service. 

In the September 2006 rating decision, it appears that the RO denied the claim for service connection for a urinary/prostate disorder disability on the merits without first reopening the claim. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claims has been received because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  

The Veteran did not appeal the September 2006 rating decision.  As the Veteran did not appeal the September 2006 rating decision, that decision is now final based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  Most recently, the Veteran sought to reopen his claim for service connection for a urinary/prostate disorder disability in December 2007.

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F. 3rd 1356 (Fed. Cir. 1998).

Regarding petitions to reopen filed on or after August 29, 2001, Title 38 Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2010).

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record.  This analysis is undertaken by comparing newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial was the October 2005, RO decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 

In the September 2006, unappealed rating decision, the RO denied the Veteran's claim based on a finding that the evidence did not show that the Veteran's urinary/prostate disorder disability was related to his military service.

Evidence received after the September 2006 decision includes VA and private treatment notes demonstrating a diagnosis of prostatitis.

However, the subsequently received evidence is either cumulative or redundant of the evidence previously of record, or it does not raise a reasonable possibility of substantiating the claim.  Much of the evidence is cumulative or redundant in that it merely restates prior contentions or evidence, or demonstrates that the Veteran has current diagnosis of prostatitis.  There is no evidence that relates to an unestablished fact necessary to substantiate the claim, namely that a urinary/prostate disorder occurred in or was caused by service.  Overall, there is no medical evidence or opinion suggesting that the Veteran's current urinary/prostate disorder is in any way related to his service.  

Although the Veteran testified that he believed that his current a urinary/prostate disorder is related to his service, the Veteran is not competent to provide an opinion as to etiology and as such, his statements cannot serve as a basis for the reopening of a previously denied claim.  Accordingly, reopening of the claim for service connection for a urinary/prostate disorder is not warranted. 


ORDER

An effective date prior to March 12, 2003, for the grant of service connection for PTSD is denied.

New and material evidence has not been received to reopen the claim for service connection for a urinary/prostate disorder; the appeal is denied.


REMAND

One of the matters the Board must address is which issue or issues are properly before it at this time.  Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran.  In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203.

In the December 2009 decision, the RO continued a noncompensable disability rating for tonsillitis and denied service connection for bilateral hearing loss, tinnitus and obstructive sleep apnea, to include as secondary to service-connected tonsillitis.  While the Veteran submitted a statement in January 2010 expressing disagreement with that decision, it appears that no subsequent statement of the case was ever issued with regard to these issues.  Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that this issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26.  In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal.  The Board's actions regarding this issue are taken to fulfill the requirements of the Court in Manlincon. 

Regaring his PTSD claim, the Veteran seeks an initial disability rating in excess of 70 percent for his service-connected PTSD disability.  The Board observes that the most recent VA examination in October 2006 for this disability is almost 5 years old.  The Board notes that the Veteran failed to report to a scheduled VA examination in September 2008.  However, at his February 2011 hearing, the Veteran testified that the examination was scheduled when he and his wife were dealing with Hurricane Ike.  He also indicated that he would be willing to attend a new VA examination if one were to be scheduled.  Additionally, the Veteran testified that his PTSD symptoms had worsened since his last VA examination.

The Court has held that where the Veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted).   

Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected PTSD, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous").

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2.  The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to a compensable disability rating for tonsillitis and service connection for bilateral hearing loss, tinnitus and obstructive sleep apnea, to include as secondary to service-connected tonsillitis, including citation to all relevant law and regulation pertinent to this claim.  The Veteran must be advised of the time limit for filing a substantive appeal.  38 C.F.R. § 20.302(b).  Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order.

3.  Then, the RO/AMC should arrange for the Veteran to be scheduled for a VA examination by a psychiatrist or psychologist.  The claims files must be made available to and reviewed by the examiner.

The examination report should include a discussion of the Veteran's documented psychiatric history and should also address the Veteran's assertions regarding his psychiatric symptoms.

The examination report should report the severity of the Veteran's PTSD in terms conforming to the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204 (1994).  

The examiner should provide the rationale for all opinions expressed. 

4.  Thereafter, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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. 2010).



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs