Citation Nr: 1242003 Decision Date: 12/10/12 Archive Date: 12/20/12 DOCKET NO. 09-07 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent disabling for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to February 1966 in the Air Force and from February 1966 to December 1969 in the Army. He is the recipient of, among other decorations, the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Los Angeles, California. 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 PTSD The Veteran's PTSD is currently assigned a 50 percent disability rating, effective August 29, 2007. See 38 C.F.R. § 4.130 (Diagnostic Code 9411). The Veteran seeks a higher initial rating. The evidence of record includes a letter dated around July 2007 from the Veteran to Dr. S.S., his private psychiatrist, in which he wrote that he intended to apply for disability income with the Social Security Administration (SSA) relating to certain psychiatric symptoms such as insomnia and feelings of anger and frustration. Also, a December 2007 VA examination report reflects that the Veteran stopped working in July 2007. Therefore, as there may be outstanding SSA records relevant to the Veteran's claim, VA has a duty to obtain copies of any such SSA records and associate them with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); See Hayes v. Brown, 9. Vet. App. 67, 73-74 (1996). In addition, the Board acknowledges that in his February 2009 Form 9 appeal, the Veteran has described symptoms of his PTSD more severe than those shown in the most recent VA examination report. Based thereon, the Board finds that a remand is also necessary to provide the Veteran with a new VA examination to address the current severity of his PTSD. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (citing 38 C.F.R. § 3.327(a)) ("VA regulations specifically require the performance of a new medical examination . . . [when] 'evidence indicates there has been a material change in a disability or that the current rating may be incorrect.'"). In addition, the Board notes that it appears that there may be some outstanding private treatment records relating to the Veteran's PTSD. Based thereon, the Board finds that a remand is also necessary so that the Veteran may have an opportunity to identify any outstanding private treatment records relating to his claim and, to that end, to provide Forms 21-4142 so that these records may be obtained. Back The Veteran served on active duty from September 1964 to December 1969. He claims that he incurred a low back disability as a result of service. Specifically, the Veteran asserts that he injured his low back in a hard parachute landing after an entanglement with another jumper during airborne training at Fort Benning, and that he was treated at the time but did not further pursue any follow-up because he was an airborne ranger and thought he should "suck it up." See Statement, January 2009 at 5; Form 9 appeal. In that regard, the Board notes that the Veteran's service records do reflect that he had 13 weeks of ranger and airborne training at Fort Benning from July to October 1966. The Board also acknowledges that a July 1965 service treatment record reflects that the Veteran complained of back pain and was diagnosed with a muscle strain. The Veteran reported on a Form 21-4142 authorization that he had been treated by Dr. S. since 1998 for his low back condition. The RO requested copies of any relevant treatment records dated since 1998 from Dr. S. A July 2005 MRI report from Dr. S. (the only record received from him) reflects, among other things, impressions of severe facet changes, ligamentum flavum hypertrophy at L4-5, grade I anterolisthesis of L4 over L5, and a small disc bulge at L5-S1. In light of the fact that the service records reflect that the Veteran had a back muscle strain in service in 1965 and that he had subsequent airborne ranger training in 1966 during which he asserts he injured his back, and in light of the July 2005 private MRI report reflecting a diagnosed low back condition as well as the Veteran's asserted continued pain since service (see claim), the Board finds that the low threshold requirement for a VA examination has been met, and that a remand is necessary for a VA examination to secure an opinion as to etiology. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any VA or private treatment relating to his claimed back condition and service-connected PTSD. In that regard, ask the Veteran to complete Forms 21-4142 authorizations as necessary. 2. Obtain copies of the Veteran's SSA records and associate them with the claims file. If the records are found to be unavailable, this should be specifically noted in the claims file. 3. After all of the above development has been completed, afford the Veteran a new VA examination to determine the current severity of his service-connected PTSD. All appropriate testing should be carried out, to include an interview and a comprehensive mental status examination. The examiner should elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations of the Veteran's PTSD and discuss the impact of such symptoms on the Veteran's social and occupational functioning. The examiner should also opine as to whether, due to the Veteran's PTSD, he is unable to secure or follow substantially gainful employment. A Global Assessment of Functioning score should be assigned, and the examiner should explain the basis for such score. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 4. After the above development in paragraphs (1) and (2) has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any low back disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner render an opinion as to whether it is at least as likely as not that any low back disability is related to service. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. Any opinion expressed must be accompanied by a complete rationale. The examiner's attention is directed to a July 1965 service treatment record reflecting back complaints and a diagnosed muscle strain, subsequent 1966 service personnel records reflecting 13 weeks of ranger and airborne training, and the Veteran's reported continued pain since service (see claim). 5. Then, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office. 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. 2012). _________________________________________________ BETHANY BUCK 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) (2012).