Citation Nr: 1202239 Decision Date: 01/20/12 Archive Date: 01/30/12 DOCKET NO. 97-31 631 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to an evaluation in excess of 60 percent prior to September 9, 2008, for the service-connected post-operative status, fistula in ano (hereinafter "fistula"). 2. Entitlement to service connection for claimed posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL C.N.B., M.D. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the RO that denied service connection for PTSD and a chest injury. The same decision also denied the Veteran's claim for an evaluation in excess of 60 for the service-connected fistula and a total rating based on individual unemployability (TDIU) by reason of service-connected disability. The Board initially remanded the case to the RO for further development in March 2000. In December 2002, the Board issued a decision denying service connection for PTSD and a chest injury, a rating in excess of 60 percent for the service-connected fistula, and entitlement to a TDIU rating. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2003 Order, the Court vacated the 2002 decision and remanded the case for development and readjudication under the Veterans Claims Assistance Act of 2000 (VCAA). The Board then remanded the issues to the RO in March 2004 for actions mandated by the Court's Order. In a separate decision in March 2004, the Board denied the Veteran's Motion that a February 4, 1993 decision of the Board denying a disability rating in excess of 10 percent for the service-connected fistula was not clearly and unmistakably erroneous. In October 2005, the RO assigned a TDIU rating and dependents educational assistance (DEA), both effective on January 29, 2004. The Veteran then asserted that earlier effective dates should be assigned; this claim was denied by the Board in a decision promulgated in May 2008. A hearing was held before the undersigned Veterans Law Judge in March 2006 in Washington, DC. The transcript has been associated with the claims folder. In November 2006, the Board remanded the claims of service connection for PTSD and a chest injury, as well as the increased rating claim for the service-connected fistula disability for further development and adjudication. In November 2007, the RO awarded service connection for a disability manifested by a sternum protuberance, as a residual of a chest injury. As such, the matter is no longer in appellate status. The claim of service connection for PTSD and an increased rating for the service-connected fistula disability were once again remanded in May 2008. In May 2011, the RO awarded an increased 100 percent rating for the service-connected fistula disability, effective on September 9, 2008. The RO incorrectly indicated this was a full grant of the benefits sought on appeal. Since the Veteran had filed his claim for an increased rating in March 1996, the question of increased compensation benefits for period prior to September 9, 2008, remains in appellate status since the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, to this extent, his claim remains in controversy. In June 2011 the Veteran's attorney notified the RO that he wished to discontinue his representation of the Veteran due to "professional and ethical considerations." See 38 C.F.R. § 20.608 (2011). In November 2011, the Board sent the Veteran a letter, advising that he had the right to appoint another representative if he so desired. The Veteran did not respond. The Board assumes under such circumstances that the Veteran wishes to represent himself. While the Board regrets further delay, the claim for PTSD is once again being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. Prior to January 12, 2004, the service-connected fistula disability was not shown to have been productive of complete loss of sphincter control. 3. Beginning on January 12, 2004, the service-connected fistula disability was shown to more nearly approximate a level of impairment manifested by complete loss of sphincter control. CONCLUSIONS OF LAW 1. Prior to January 12, 2004, the criteria for the assignment of an evaluation in excess of 60 percent for the service-connected fistula disability were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.114 including Diagnostic Code 7332, 7335 (1996), (2011). 2. Beginning on January 12, 2004, the criteria for the assignment of a 100 percent evaluation for the service-connected fistula have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.114 including Diagnostic Code 7332, 7335 (1996), (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VCAA VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess, supra. In the present case, the Veteran filed his claim prior to the enactment of VCAA and thus, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such defects in notice may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letters sent to the Veteran in July 2002, April 2004, March 2006, December 2006, and June 2008 that fully addressed all notice elements. The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The June 2008 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the defect in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a rating decision dated in May 2011 and Supplemental Statements Of The Case issued in March 2005, October 2005, December 2007, and May 2011, after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA. VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). As noted in the Introduction, the Board has remanded the Veteran's claim on several occasions for additional development of the record. Specifically, in March 2000 the Board requested that the Veteran be afforded a hearing at the RO before a Hearing Officer. In March 2004, the Veteran's claim was remanded in order to provide him with a corrective VCAA notification letter. The Board's November 2006 remand requested that the Veteran be scheduled for a VA examination and that any outstanding medical record be obtained. Finally, in May 2008, the Board requested that the Veteran be provided with a corrective VCAA notice letter and afforded an additional VA examination. Upon review, the record reflects that the Veteran withdrew his request for a hearing at the RO before a Hearing Officer in July 2001. As previously discussed, multiple letters which comply with VCAA notification requirements have been mailed to the Veteran. The Veteran was requested to identify or submit any additional relevant medical treatment records in a December 2006 letter. He was provided with VA examinations in November 2007 and January 2009 in response to the Board's remand requests. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) [although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required]. Further, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the record contains the Veteran's service treatment and personnel records, post-service VA and private medical records, reports of VA examinations, and the transcript from the March 2006 Board hearing. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As the Board will discuss in its analysis, the Veteran was provided with VA examinations in April 1996, November 1997, January 1999, December 2000, February 2005, April 2005, April 2007 and January 2009. The report of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the record does not reflect that the April 1996, November 2007, January 1999, or December 2000 examiners reviewed the Veteran's claims folder, the Veteran is not prejudiced thereby as the examiners considered medical history as reported by the Veteran which is consistent with that contained in his claims folder. The Board therefore concludes that the examinations are adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2011). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2011). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He exercised the option of a personal hearing and was afforded one in March 2006 as detailed in the Introduction. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Historically, service connection was granted for the fistula disability in a September 1972 rating decision. An initial 10 percent evaluation was assigned, effective in December 1970. In August 1975, the evaluation was reduced to noncompensable; however, it was once again increased to 10 percent in February 1991. The Veteran filed a claim for increase in March 1996. The RO awarded a 60 percent rating from March 1996. The Veteran disagreed with the 60 percent rating and initiated the instant appeal. AB, supra. In May 2011, the RO awarded an increased 100 percent evaluation for the service-connected fistula effective from September 9, 2008. The period prior to September 9, 2008, remains in appellate status. Id. The Veteran's fistula has been rated as 60 percent disabling under 38 C.F.R. § 4.114 Diagnostic Code 7335, for fistula in ano, which is rated as impairment of sphincter control. Under Diagnostic Code 7332, extensive leakage and fairly frequent involuntary bowel movements are assigned a 60 percent rating. Complete loss of sphincter control is assigned a 100 percent rating. 38 C.F.R. § 4.114 The Board notes that effective on July 2, 2001, the schedular criteria for the evaluation of service-connected disabilities of the digestive system underwent revision. However, Diagnostic Codes 7332 and 7335 remained the same. Accordingly, the service-connected fistula disability may be determined under the "old" or "new" schedular criteria and there is no prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1995). Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulations, the Board finds that a 100 percent rating is warranted beginning on January 12, 2004, but not before, based on complete loss of sphincter control. 38 C.F.R. § 4.7; see Hart, supra. In this regard, a January 12, 2004, a private medical examination opined that the Veteran had total loss of sphincter control secondary to longstanding service-connected rectal problems (fistula). Prior to this date, however, and despite hearing testimony in 2006, a complete loss of sphincter control was not objectively demonstrated by the evidence of record. Significantly, upon VA examination in April 1996, there was some laxity of the rectal sphincter with moderate fecal incontinence. The VA outpatient treatment records dated in June 1996 and December 1996 simply show decreased rectal tone. On VA rectal and anal examination in November 1997, the Veteran gave a history of occasional problems, which he described as "explosions and loss of stool." He also indicated he had some incontinence of stool, stating that he had to wear a pad at all times. He also reported occasional constipation. On examination, the Veteran was observed to be wearing a diaper, which was perfectly clean. The examiner specifically indicated that, between the time the Veteran had put the diaper on and the time of examination, there had been no leakage or incontinence of stool. An examination in the anal area revealed scarring at about the 7 o'clock position, which was well healed, with mucosa having grown over it. The examiner indicated this was for all intents and purposes, a successful fistula operation. Digital examination showed sphincter tone to be somewhat weak. When asked to squeeze down on the examiner's finger, the Veteran claimed he could not perform this action, but was able to squeeze down to a point of approximately 3 out of 10. Internally, there was no evidence of any fistula, which was well healed and mucosed over. In looking at the report of the Veteran's previous 1983 surgery, it was noted that the surgeon had taken special care to preserve the deep sphincter fibers. The examiner opined that the Veteran suffered from an irritable bowel syndrome characterized by alternating constipation and explosive diarrhea. The examiner indicated that, if the Veteran did not have explosive bowel movements, he would probably get along very well. The examiner concluded there did not appear to have been any increase in the Veteran's disability since 1983. The Veteran was diagnosed with irritable colon syndrome with alternating constipation and explosive diarrhea; weakened anal sphincter following fistulotomy; and occasional incontinence of stool when the loose stools of irritable colon and the weakened fistula came together. Upon VA examination in January 1999, the Veteran continued to wear a diaper, which was spotlessly clean. The examiner found 100 percent continence since the time of the Veteran's putting on the diaper that morning up to the time of examination. The examination revealed that the Veteran's condition had not changed since the time of his last compensation and pension examination as the objective findings were identical. The examiner opined the Veteran continued to suffer from irritable colon syndrome, as well as a slightly weakened sphincter, with some scarring and distortion of the anal canal. These three factors were said to combine to account for the reported loss of stool. The examiner added that, while he did not doubt that the Veteran experienced some loss of stool, on two occasions, he had seen no evidence of that on the Veteran's diaper. The Veteran was afforded an additional VA examination in December 2000, with the same examiner. There was no change in the Veteran's condition. The Veteran reported having some swelling around his anus and continuing to stain his diaper. There was some scarring around the Veteran's anus; however, the anal sphincter appeared to have a fairly good degree of tone despite a minimal ability to squeeze the examiner's finger. The examiner did note that it was somewhat difficult to determine the amount of effort the Veteran displayed. At the time of examination, the examiner added, there was no dermatitis around the Veteran's anus, as one might expect were there to be constant dribbling. The Veteran's diaper was again noted to be spotless. The examiner opined the Veteran got along very well and did not have any staining, except on those occasions when he experienced an exacerbation of his irritable colon syndrome. The Veteran was diagnosed with old ischiorectal abscess, probably with drainage, followed by sphincterotomy, followed by a minor procedure, with no evidence of anal leaking at the time of examination. In a January 2004 private medical opinion, Dr. C.N.B., stated that that the Veteran experiences total loss of sphincter control. While Dr. C.N.B. stated that this opinion was consistent with the remainder of the evidence of record, and testified during the March 2006 hearing that the Veteran had complete loss of sphincter control since 1987, as discussed in detail, multiple VA examinations revealed that the Veteran had not lost complete sphincter prior to January 2004. Moreover, the Board notes that the Veteran does not appear to contend that he experienced complete loss of sphincter control prior to January 2004. Instead, in a June 1996 statement, the Veteran indicated that his sphincter control was "bad" but did not indicate that he had lost all control and, as noted, the record does not indicate that such symptomatology had been approximated. In this capacity the Board notes that complete is defined as "total, absolute." See Merriam-Webster 's Collegiate Dictionary, 254 (11th 2003). Based on the competent and credible medical evidence which demonstrates that the Veteran maintained diminished sphincter control during VA examinations, and a lack of competent and credible lay evidence indicating otherwise, a 100 percent rating is not warranted prior to January 12, 2004. In light of these findings, there is no basis for assignment of a 100 percent evaluation prior to January 12, 2004, when an actual medical opinion was first entered into the record that the Veteran had a complete loss of sphincter control. See 38 C.F.R. § 4.114; See Fenderson, supra. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected fistula is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2011). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The Board finds in this regard that the rating criteria used to evaluate the Veteran's service-connected fistula disability reasonably describe his disability level and symptomatology. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disabilities. Even assuming any lost time from work, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An increased rating of 100 percent beginning on January 12, 2004, for the service-connected fistula disability is granted, subject to the regulations governing disbursement of VA monetary awards. REMAND The Veteran here asserts that his PTSD is the result of two stressful experiences in service, one where he caught someone stealing important papers and became the target of an investigation. The other incident was when he was riding a bus back to his base on New Year 's Eve when he got into a fight and was kicked in the chest, breaking his sternum. A determination has been made that additional evidentiary development is necessary in this case. Accordingly, further appellate consideration will be deferred and this case remanded for action as described. Prior to March 7, 1997, governing regulations provided that service connection for PTSD required medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (effective prior to March 7, 1997). Effective on March 7, 1997, service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that a claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). The Board finds that a remand for VA examination is necessary prior to further appellate review, to determine whether the Veteran has PTSD related to an incident of service as claimed. The applicable law requires VA to deem an examination necessary to adjudicate a claim for service connection when there is competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of disability; the information or evidence indicates that the disability or symptoms may be associated with the claimant's active service; but, the file does not contain sufficient medical evidence for VA to make a decision. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court of Appeals for Veterans Claims reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in- service event, injury, or disease; and, indication that the current disability may be associated with service or with another service-connected disability. McLendon at 81. The RO, or the Board, tests for those criteria and then decides if there is sufficient competent credible medical evidence of record to decide the claim. 38 C.F.R. § 3.159(c). The Court cautioned in McLendon that an "absence of actual evidence is not substantive 'negative evidence.'" It further noted that an indication that a current disability "may" be associated with service is a low threshold. The service treatment records dated in September 1967 indicate the Veteran was seen at that time for complaints of chest pain, among other things. A physical examination was within normal limits and no pertinent diagnosis was rendered. Radiographic studies of the Veteran's chest conducted in December 1968 were entirely within normal limits. In December 1969, the Veteran was seen with a complaint of substernal pain. On examination, the Veteran's chest was clear to percussion and auscultation. No pertinent diagnosis was noted. Two days later, he was once again seen for a complaint of, among other things, chest pain. At that time, the Veteran gave a history of chest pain of two years' duration, following his being beaten up in a bar. Noted at the time of evaluation was that the Veteran constantly pushed on his sternum. He stated that he constantly worried about the pain in his chest, thinking that he might have some "broken bones" in his chest. The following day, the Veteran underwent an electrocardiogram, as well as radiographic studies of his ribs, both of which were within normal limits. Post-service, the Veteran did not meet the full criteria for PTSD after VA examination in June 1997 or April 2005. The Veteran was afforded a VA examination in July 2008. The examiner diagnosed the Veteran with dementia. The examiner specifically indicated that it was difficult to complete the mental status examination as a result of Veteran's dementia and a possible language barrier and suggested that a new examination be scheduled with an appropriate examiner. In September 2005, service connection was granted for dysthymic disorder and generalized anxiety disorder secondary to the service-connected fistula. The RO also granted service connection for a sternum protuberance, residuals of a chest injury, in November 2007. It is unclear from the record whether the Veteran has a current diagnosis of PTSD based upon a verified stressor, namely the chest incident. Therefore, a remand for another VA examination is necessary. 38 U.S.C.A. § 5103A; McLendon, supra. Any additional medical records pertinent to the issue, including VA records, should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). As this matter is being remanded, the agency of original jurisdiction should take efforts to ensure that it provides the Veteran with notice that meets all due process requirements, including those addressed by recent cases from the Court. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO should ensure that all due process requirements are met in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 2. The RO should take appropriate steps to contact the Veteran and request that either identify all healthcare providers who have treated him for PTSD since his discharge from service. The RO should request that the Veteran complete and return the appropriate release forms so that VA can obtain any identified evidence relating to such treatment. The RO should attempt to obtain copies of all pertinent records outstanding. All identified private treatment records should be requested directly from the healthcare providers. All information that is not duplicative of evidence already received should be associated with the claims file. All requests for records and their responses should be clearly delineated in the claims folder. At least one follow-up request must be made if a response is not received to the initial request for records. 3. After any private or VA medical records have been obtained and incorporated in the claims file, the Veteran should undergo a VA psychiatric examination. If at all possible, an interpreter as indicated should be present. The purpose of the examination is to determine whether the Veteran has PTSD based upon a verified stressor. Prior to the examination, the claims folder must be made available to the examiner for review. A notation to the effect that this record review took place must be included in the report of the examiner(s). All appropriate tests and studies (and consultations, if warranted) should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached in the examination report. The examiner should state whether the Veteran has PTSD as defined under DSM IV criteria and if diagnosed, whether it is at least as likely as not related to an event or incident of his period of service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 5. After completing the requested development to the extent possible, the RO should readjudicate the remaining claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs