Citation Nr: 1234980 Decision Date: 10/10/12 Archive Date: 10/17/12 DOCKET NO. 04-36 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for foot fungus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The RO granted service connection for PTSD and assigned a 30 percent disability rating effective November 12, 2002. The RO also denied service connection for hepatitis C and foot fungus. A Travel Board hearing was held in August 2012 with the Veteran in Los Angeles, California, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is warranted in order to fully and fairly adjudicate the Veteran's claims. PTSD The Veteran's last VA examination was conducted in February 2003. At the time that he filed his claim, he indicated that he received treatment for his PTSD at the Gardena Vet Center. However, VA treatment records associated with the claims file from that facility do not reflect any such treatment. During his August 2012 hearing, the Veteran testified that he was not receiving any current treatment for PTSD. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Because there may have been a significant change in his condition, the Board finds that a new psychiatric examination is needed to fully and fairly evaluate the Veteran's claim for an increased disability rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The Board notes that a VA QTC examination was scheduled for the Veteran in April 2011, but that the Veteran failed to appear. However, the record does not show that the Veteran received a notice letter from VA or QTC services that an examination was being scheduled. Therefore, another examination is warranted, and the Veteran should be given adequate notice of the time and place of the examination. Finally, the Board notes that in his July 2003 notice of disagreement, the Veteran indicated his preference for a standard VA examination over a QTC examination. Therefore, if possible, the RO/AMC should schedule the Veteran for a standard VA examination. Hepatitis C The Veteran contends that he has hepatitis C related to his time in service. VA treatment records dated March 2003 reflect a diagnosis of hepatitis C. When he filed his claim, the Veteran indicated that he was receiving treatment for his condition through Dr. M.S. at Kaiser Permanente, and he submitted an appropriate VA Form 21-4142 release of information for those records. In April 2003, the RO notified the Veteran that due to a recent change in the law, the release that he signed was no longer acceptable. The Veteran submitted a new VA Form 21-4142 in July 2003. However, it does not appear that the RO made any attempt to obtain the records. The August 2004 statement of the case referenced only the unsigned forms. Therefore, on remand, the RO/AMC should attempt to obtain the private treatment records from Kaiser Permanente identified by the Veteran using the signed release. In addition, the Veteran indicated in an April 2003 statement that he never received a blood transfusion, undergone surgery, used drugs, or received a tattoo. However, he reported being exposed to blood during a combat situation in service. He described having cuts and open wounds on his arms while evacuating wounded and bloody troops. The Veteran received the Combat Infantryman's Badge during service. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2011). Therefore, to the extent that the Veteran reported exposure to blood during combat in service, the Board finds the Veteran's statements regarding such circumstances as sufficient proof. In light of the Veteran's current diagnosis and his reported exposure to blood in service, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Foot Fungus The Board notes that the Veteran was scheduled for a VA QTC examination in April 2012 in connection with his claim, but that he failed to appear. The record reflects that VA notified the Veteran that he would receive notice from QTC regarding the examination, but the QTC notice itself is not in the claims file. Therefore, similar to the Veteran's claim for PTSD, another examination is warranted, and the Veteran should be given adequate notice of the time and place of the examination. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should attempt to obtain treatment records previously identified by the Veteran from Dr. M.S. and Kaiser Permanente regarding the Veteran's hepatitis C, and Dr. B regarding fungus problems. 2. The AMC/RO should afford the Veteran a VA examination in order to assess the current severity of his PTSD. The Veteran's claims folder should be made available to the examiner for review in conjunction with the examination. The Veteran must be given adequate notice of the time and place of the examination. If possible, a standard VA examination, rather than a QTC examination, should be conducted. The examination report should include a description of the Veteran's symptoms, clinical findings and associated social and industrial impairment that has been and is attributed to his service-connected PTSD. In providing the requested medical opinions, the examiner should provide medical findings in terms consistent with the current criteria for rating mental disorders under 38 C.F.R. § 4.130, Diagnostic Code 9411, should assign a Global Assessment of Functioning score, and should explain the meaning of the numerical score assigned. All findings should be reported in detail accompanied by a complete rationale. 3. The Veteran should be scheduled for an appropriate VA examination for an opinion as to whether there is at least a 50 percent probability or greater that he has hepatitis C as a result of active service or an event demonstrated to have occurred during active service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner should specifically review the Veteran's August 2012 hearing testimony and April 2003 written statement regarding his history of hepatitis C risk factors. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 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 should be scheduled for an appropriate VA examination for an opinion as to whether there is at least a 50 percent probability or greater that he has a current fungal disorder of the feet or other areas that is etiologically related to service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner should specifically review the Veteran's service treatment records which reflect a diagnosis of athlete's foot, as well as the April 1972 VA examination. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 5. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2011). 6. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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. 2011). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).