Citation Nr: 1125465 Decision Date: 07/06/11 Archive Date: 07/14/11 DOCKET NO. 07-24 390A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for low back strain. 3. Entitlement to service connection for residuals of a left shoulder injury. 4. Entitlement to service connection for arthritis, bilateral hands, including as secondary to the Veteran's service-connected hepatitis B disability. 5. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had a period of active initial duty for training from September 6, 1985, to October 24, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. A November 2006 rating decision denied service connection for PTSD. A June 2007 rating decision denied service connection for low back strain, bilateral hand arthritis, and the residuals of a left shoulder injury. An April 2008 rating decision denied service connection for hepatitis C, a claim for TDIU, and a claim for a rating greater than 30 percent for the Veteran's service-connected hepatitis B disability. In May 2009 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Columbia, South Carolina. The transcript of that hearing is of record. In a September 2009 decision/remand, the Board denied the Veteran's claims of service connection for hepatitis C and for an increased rating for the service-connected hepatitis B, rated as 30 percent disabling. The other claims were remanded back to the RO for additional development of the record. The issues of entitlement to a left shoulder disability and entitlement to a TDIU 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has intertwined and inseparable diagnoses of PTSD and Borderline Personality disorder. 2. The Veteran did not engage in combat with an enemy of the United States of America. 3. There is credible supporting evidence that the Veteran experienced stressors of physical abuse (personal assault) during service and his diagnosis of PTSD has been attributed to such in-service stressors. 4. The competent and probative evidence of record establishes that it is at least as likely as not that the Veteran acquired PTSD during active military service, as a result of in-service personal assault or that the Veteran had a Borderline Personality Disorder that was at least as likely as not aggravated during active service as a result of an in-service personal assault. 5. The competent and probative medical and lay evidence of record establishes that the Veteran's current low back disability is unrelated to any disease, injury or other event of service. 6. The Veteran does not have arthritis of the hands. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the Veteran's psychiatric disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2010). 2. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2010). 3. Arthritis of the hands was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The grant of service connection for a psychiatric disorder constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. Regarding the other claims for service connection, the RO provided the appellant pre-adjudication notice by letter dated March 2007. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The notice also specifically provided notice of how VA assigns ratings and effective dates in compliance with the holding in Dingess. Moreover, that information was reiterated in subsequent notices to the Veteran throughout the course of this appeal. Additionally, the RO has, during the course of the appeal, provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of the disability, and afforded the Veteran the opportunity to give testimony before the Board. The medical examination reports are adequate as they are based on a review of the history, an examination, and as information was provided that is sufficient to allow the Board to render an informed determination. All known and available records relevant to the skin issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The claims were remanded in September 2009, and there has been substantial compliance with the remand instructions. As the agency of original jurisdiction (AOJ) substantially complied with the September 2009 remand orders, no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Service Connection PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to PTSD, claiming that his psychiatric disorder began as a result of physical abuse during active duty training in 1985. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may 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). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for PTSD (as opposed to other acquired psychiatric disorders) requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran's PTSD claim is based on an in-service personal assault. Because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a problem of proof of the occurrence of the claimed stressor. In such situations it is not unusual for there to be an absence of service records documenting the events a veteran has alleged. Therefore, evidence from sources other than the veteran's service records may corroborate an account of a stressor incident. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999). As provided by 38 C.F.R. § 3.304(f), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f). Historically, the Veteran maintains that development of Hepatitis B during basic training, which resulted in an inability to keep up with the physical rigors of basic training, was mistaken by his superiors as laziness and an indifference toward succeeding in the military. The Veteran specifically reports that he was harassed by drill sergeants, whom he said threatened to kill him. He said that they punched him, pushed him down a flight of stairs, and prevented him from seeking medical treatment. Although the service personnel records (SPRs) show a pattern of disrespect toward commanding officers and a pattern of misbehavior, they do in fact confirm that the Veteran was menaced by a sickle wielding noncommissioned officer during a counseling session and discouraged from seeking medical treatment during a bout of ill health, as well as other incidents. Significantly, a notation from October 18, 1985 notes that the Veteran was making no effort to improve; and, when his NCO tried to escort him to "PRT" he was moving so slow and complaining about pain, that the NCO determined it was impractical to expend any more man-hours on the soldier. Severe UCMJ action was recommended. Service treatment records (STRs) dated October 17, 1985, show that the Veteran was referred to mental health services. Private hospital records show that the Veteran was admitted to Spartensburg General Hospital on October 25, 1985 with full-blown hepatitis. The Veteran appeared severely jaundiced on admission and tests were positive for hepatitis B. Additional STRs show that subsequent to the Veteran's discharge, the Veteran's parents filed a complaint with regard to how the Veteran was treated during service. They raised allegations of misconduct that were addressed by the Inspector General of the Army. Although not all of the Veteran's allegations were substantiated, it was clear that the Veteran underwent at least some abuse, and a lack of much needed medical attention prior to his discharge. VA psychiatric treatment records dating from at least December 2006 show diagnoses of "PTSD secondary to events in basic training;" depression; and generalized anxiety disorder. At his VA travel board hearing in May 2009, the Veteran testified that he began having PTSD symptoms during boot camp when he was being harassed by his drill instructors; however, he did not know exactly why he was having those symptoms for several years after discharge from service, until he sought treatment for anxiety and depression. In other words, the Veteran testified that he had continuity of symptoms since service, even if he was not necessarily aware of what was wrong with him until several years later. At a VA examination in October 2010, the examiner noted a review of the claims file, and in particular, the Veteran's continued treatment since 2007 for anxiety and mood disorders. The examiner noted that the Veteran's claims file and CPRS records showed a pattern of chronic affective/mood dysregulation, behavioral dysregulation, and interpersonal conflict consistent with a Cluster B Type personality disorder; however, the Veteran's clinical picture was complicated by treatment non-compliance, an erratic and unstable lifestyle, homelessness, and recurring abuse of alcohol, cannabis, and several other substances, including cocaine. The Veteran reported that his main symptoms were anxiety and depression, with a poor tolerance to stress, periods of trembling, muscular tension, irritability, loss of appetite and difficulty concentrating. The examiner noted that the Veteran indeed met the DSM-IV stressor criterion based on the Veteran's corroborated stressors of being threatened by his superiors, one with a sickle and a pistol, one who ripped the Veteran's shirt off, and one who denied the Veteran medical care when he had Hepatitis B. The examiner also noted that the Veteran indeed met the DSM-IV criteria for a diagnosis of PTSD. However, the examiner also noted that the Veteran's clinical picture was quite complex and complicated by numerous factors as noted above. The examiner noted that co-morbid personality disorders and substance dependence were well-known to cloud and mask other mental health conditions that may be present during evaluation, making a definitive diagnosis challenging and making an accurate apportionment of the Veteran's psychosocial impairment impossible at this time. In sum, the examiner could not state for certain whether the Veteran was suffering from PTSD; however, he did note that the Veteran likely had a borderline personality disorder as well as a substance abuse problem. Regarding these disabilities, the examiner noted that they were not caused by military service; however, the examiner did opine that the Veteran's psychiatric disorder(s) were as likely as not made more severe as a result of the events that transpired during boot camp. The examiner specifically noted that although there was some uncertainty regarding the extent of the Veteran's military personality problems, it was as likely as not that this veteran emerged from his military service with more severe personality problems; he exhibited anxiety in excess of what one would reasonably expect from what is known about his pre-military background and from his other diagnosis. Given that the Veteran's stressors have been corroborated with regard to his personal assault claims, the examiner opined that it was as likely as not that the Veteran's borderline personality disorder was permanently aggravated by the hazing he experienced during his military service. In short, there is no conclusive evidence to verify that the Veteran was physically abused by his superiors in service, although at least some evidence of inappropriate behavior has been corroborated. Thus, the Veteran's claimed in-service stressors have not been absolutely verified. However, there is substantial corroboration in this case. The evidence overwhelmingly shows that the Veteran's pattern of behavior following the claimed assault(s) changed during service, and has continued to the present day. This pattern of behavior included increased depression, anxiety, inability to get along with others, substance abuse, without an identifiable cause; and unexplained economic and social behavior changes. These behavioral changes occurred drastically during a short period of time beginning during active service, and resulted in an obvious dramatic decline in the Veteran's overall mental health. This pattern of behavior has been corroborated by medical professionals, the Veteran's father, and others close to him, who apparently witnessed the changes that occurred after the Veteran developed Hepatitis B in service. According to 38 C.F.R. § 3.304(f), the above described pattern of behavior is the exact type of evidence that is needed to support the type of claim presented in this case. It is not surprising that the RO has had difficulty trying to verify the Veteran's stressors because of the very nature of the events that he describes. In this case, the Veteran has a diagnosis of PTSD based on in-service abuse, with sufficient credible supporting evidence to indicate the presence of abuse during service. In addition, a VA clinical psychologist indicated in a March 2009 that the Veteran has chronic PTSD based on in-service abuse, that he relives the experiences and has nightmares and flashbacks, that he has distrust and anger, difficulty relating to others, and hypervigilance. See DSM IV. Applying the above scenario to the applicable law and regulations can only result in the establishment of service connection in this case. Although the Veteran also has a diagnosis of "borderline personality disorder," the examiner who provided that diagnosis also noted that the Veteran met the DSM-IV criteria for a diagnosis of PTSD, and also indicated that the Veteran's psychiatric disability, regardless of its title, was permanently aggravated by the treatment he received during service. It is well-established that service connection may not be granted for congenital or developmental defects, such as refractive error of the eye, personality disorders and mental deficiency as they are not diseases or injuries within the meaning applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). However, although the provisions of 38 C.F.R. § 3.303(c) exclude congenital defects from consideration for service connection the VA General Counsel, in a precedent opinion binding on VA pursuant to 38 C.F.R. §§ 2.6(e)(9), 14.507, and 19.5, reasoned that the term "disease" in 38 U.S.C.A. §§ 1110 and 1131 and the term "defect" in 38 C.F.R. § 3.303(c) are mutually exclusive, and concluded that service connection may be granted for diseases, but not defects, of a congenital, developmental, or familial origin. VA Gen. Couns. Prec. Op. 82-90 (July 18, 1990) (originally issued as VA Gen. Couns. Prec. Op. 1-85 (Mar. 5, 1985)). The opinion advised that when a disease is of a congenital nature, VA adjudicators are justified in finding that such disease preexisted service, but that in cases where the disease is first manifest in service, guidance from medical authorities may be necessary regarding the actual time of inception. Typically in these cases, entitlement to service connection should turn on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. That question must be resolved by applying the same stringent legal standards that are applicable in cases involving acquired disabilities. Monroe v. Brown, 4 Vet. App. 513 (1993). Thus, when the totality of the evidence is reviewed in this case, the overall disability picture warrants a grant of service connection for an acquired psychiatric disorder, to include PTSD. In light of the foregoing, and in resolving all doubt in the Veteran's favor, service connection is warranted for an acquired psychiatric disorder, to include PTSD. Orthopedic Disabilities Service treatment records (STRs) dated September 19, 1985, reflect treatment for low back pain of three to four days' duration. The examiner noted that the Veteran had scoliosis that could be compressing in the lower spine. The assessment was mechanical back pain. Other STRs note treatment for pain in the mid to upper back in connection with treatment for left shoulder pain Records obtained from the Social Security Administration in conjunction with a claim for Social Security Disability show that the Veteran was awarded disability benefits on the basis of his affective/mood disorders and anxiety related disorders. In his application, however, the Veteran also noted his orthopedic disabilities including those of the back and shoulder. The medical evidence used to support this award includes many of the VA outpatient records already contained in the claims file. These records show treatment for low back pain; however, it appears that the current low back pain only dates back to 1994. Specifically, a July 2003 VA treatment record notes low back strain since 1994. Further, a July 2007 surgical orthopedic note reveals that the Veteran reported chronic pain in his left shoulder, right knee and wrist. He also had contracture of the little finger on his left hand. There was no mention of low back pain (or arthritis of the hands). In order to address the Veteran's contentions regarding the etiology of his low back pain, he was afforded a VA examination in October 2010. The Veteran reported that his back pain began when he was thrown down the stairs during boot camp. The examiner reviewed the Veteran's claims file and VA medical records, and on examination of the spine, determined that the Veteran had degenerative arthritis and disc disease of the lumbar spine, with no evidence of radiculopathy. The examiner opined that the Veteran's current low back disorder was less likely as not due to or permanently aggravated by military service. The examiner noted that although the Veteran alleged that his back disability began during service, at the time of his reported fall down the stairs, subsequent physical examination records do not show continuity of symptoms with regard to low back pain. For example, the examiner referenced the examination reports of March 1986, August 1986, and October 1988 and noted that each examination was performed by a different examiner; yet, there were no related subsequent or objective findings on any of the three examinations regarding back pain. Had there been any symptomatic residuals resulting from the reported incident during service where the Veteran described falling down the stairs, it would have been medically unlikely, according to the examiner, that that the Veteran would have had no related subjective or objective findings on any of those three examinations. Additionally, the examiner noted that it was medically plausible that since the Veteran's admitted post-military jobs have required significant manual labor that the current back symptoms may well have arisen during that period of time after service. Degenerative arthritis and degenerative disc disease of the spine are frequently noted in individuals who have no history of traumas such as falls. The examiner also noted there was no medical literature to suggest a nexus between residuals of hepatitis B and the diagnosis relative to the low back. There is no medical opinion to the contrary. In sum, there is no nexus between the Veteran's in-service complaints of low back pain and the present low back disability. While the Veteran is certainly competent to report back pain, he does not possess the requisite medical background to provide a competent medical opinion regarding a nexus between degenerative arthritis and degenerative disc disease and the back pain he experienced in service, particularly given that the current diagnosis was not present during service, and because there is a long history of manual labor between discharge from service and the present day, and an intervening injury noted in 1994. Although the Veteran is certainly competent to report his symptoms, and there is no reason to doubt his credibility in this regard, the Veteran does not possess the requisite medical expertise necessary to provide an opinion requiring such medical knowledge as the complex medical question in this case. The Veteran's account of his symptoms, alone, does not provide enough evidence to show that the Veteran, as likely as not, has a current low back disability that had its onset during service, or was caused or aggravated by any event or injury or disease in service because, as the VA examiner noted, there is a large gap of time where there is no complaint or finding relative to the low back and the current disabling condition is not the type of disability that is caused by a one-time traumatic injury. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). The expert provided a complete rationale for his medical opinions, which were based on a review of the medical history and sound medical principles, and there is no competent medical opinion to the contrary. This opinion is entitled to great probative weight and outweighs the Veteran's statements which are competent, credible, and probative, concerning continuity of symptoms since service. In addition, the lack of contemporaneous medical records showing a back disability for many years after service also weighs heavily against the Veteran's statements regarding continuity of symptoms since service. For these reasons, the preponderance of the evidence is against the claim and service connection for a low back disability is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Regarding the claimed arthritis of the hands, the STRs are negative for any complaints or findings with regard to the Veteran's hands. In March 2002, the Veteran complained of pain in the knuckles of the right hand for one month's duration. He denied injury. The assessment was hand pain. A July 2003 notes an assessment of "DJD hands" but there is no x-ray report to support this finding. In June 2006, the Veteran presented with complaints of bilateral hand pain. X-rays of the Veteran's hands were normal and RF (rheumatoid factor) was negative. With regard to the hands, the Veteran had Dupuytre's contracture of the left fourth finger. Further, a July 2007 surgical orthopedic note reveals that the Veteran reported chronic pain in his left shoulder right knee and wrist. He also had contracture of the little finger on his left hand. There was no mention of low back pain or arthritis of the hands. On examination in October 2010, the examiner reviewed the claims file and VA records, and noted that there was contracture of the left little finger, with no diagnosis made regarding the right hand or the remaining digits of the left hand based on a negative exam. The examiner noted that there was no evidence mentioned of the existence of the digit contracture of the left hand in the three compensation and pension examinations conducted in 1986 and 1988 as mentioned above. Moreover, the examiner pointed out that the Veteran did not report a history of this problem developing until years after military service. Further, there is no diagnosis made relative to the right hand. In light of the foregoing, the examiner determined that no opinion was necessary. The evidence does not show and the Veteran does not contend that the contracture of the little finger has any relationship to service. Moreover, there is no evidence of arthritis of the hands or of any other disability of the hands. The one diagnosis of arthritis is outweighed by the negative x-rays in June 2006 and October 2010 and also the findings on the VA examination of October 2010. As such, service connection is not warranted for arthritis of the hands. A claim for service connection requires medical evidence showing that the veteran currently has the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Absent proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no medical evidence establishing a current diagnosis of arthritis of the hands for which service connection may be established. The Veteran as a layperson is not competent to diagnose arthritis of the hands. Thus, the preponderance of the evidence is against a finding service connection for arthritis of the hands, and the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is granted. Service connection for a low back disability is denied. Service connection for arthritis of the hands is denied. REMAND The Veteran's STRs note a pre-existing left clavicle fracture. A September 1985 x-ray reveals minimal deformity of the left mid clavicle consistent with history of old fracture. A note dated October 4, 1985, shows treatment for left shoulder pain. Other STRs note a pre-existing left clavicle injury that resulted from a fall out of the back of a station wagon at age 15. In addition, VA medical records show ongoing treatment for left shoulder pain. Interestingly, some of these post-service treatment records indicate that the onset of the left shoulder pain began in 1985 when the Veteran was reportedly thrown down the stairs during basic training. Other VA treatment records refer to an onset of left shoulder pain in 1983, which would coincide roughly with the pre-existing injury of a fractured left clavicle. In any event, the record certainly demonstrates current left shoulder pain. The question, therefore, is whether the claimed incident in service permanently worsened the Veteran's pre-existing left clavicle fracture. The Veteran was examined in October 2010 and the examiner specifically opined that the current Veteran's left shoulder disability did not have its onset during service given that the Veteran did not report left shoulder pain at each of his three post-service examinations in March 1986, August 1986 and October 1988. In providing such an opinion, however, it is unclear whether the examiner was aware of the Veteran's pre-existing left clavicle fracture. Because the STRs clearly show a pre-existing left clavicle fracture, another opinion is necessary to determine whether any pre-existing left shoulder injury was aggravated during service. Additionally, given the grant of service connection for PTSD, the Board is unable to determine whether the Veteran is entitled to a TDIU on a schedular basis at this time because an initial disability rating for the service-connected PTSD has not yet been established. Moreover, the issue of whether service-connection is warranted for a left shoulder disability on the basis of aggravation of a pre-existing left shoulder clavicle has not yet been resolved. As such, a determination on the TDIU issue must be deferred pending the outcome of these other matters. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should request VA medical records pertaining to the veteran that are dated from October 2010 to the present. The RO should also attempt to obtain any additional records that are identified by the Veteran as relevant. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder all pertinent VA records dating from October 2010. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file any private treatment records pertinent to the claims on appeal that the Veteran identifies that have not been previously secured. If any identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e)(1). 3. Schedule the Veteran for a joints examination to determine the current nature and likely etiology of any left shoulder disability. All indicated tests should be completed. The claims file, including a copy of this remand, should be made available to the examiner for review in conjunction with the examination. Based on a review of the entire record, including, but not limited to, the Veteran's reported history, the service treatment records and post-service treatment records, the examiner should opine as to whether it is at least as likely as not (a 50 percent or higher likelihood) that the Veteran's pre-existing left clavicle fracture was aggravated (i.e., permanently worsened) beyond the natural progression by the reported incident in service when the Veteran fell down the stairs. In the alternative, the examiner should opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the left shoulder disability originated in service or is related to active service, in light of the pre-existing left clavicle fracture. A complete rationale should accompany all opinions expressed. The examiner should also opine as to whether the Veteran's service-connected disabilities, alone, or in combination, render him unable to obtain or maintain gainful employment, taking into consideration work history and level of education, but without regard to advancing age. 4. Ensure the above development has been conducted in accordance with the instructions above. If the examination report does not provide the information requested above, return the report(s) as insufficient. Thereafter, readjudicate the Veteran's claims after taking any other development action deemed warranted. If any benefit on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period to respond before the case is returned to the Board. 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). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs