Citation Nr: 1302075 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-17 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date earlier than June 3, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for ankylosing spondylitis. REPRESENTATION Appellant represented by: North Carolina Department of Veterans Affairs ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from July 1963 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision and a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The August 2008 rating decision denied service connection for bilateral hearing loss, tinnitus, and ankylosing spondylitis. During the pendency of the appeal, an August 2012 Decision Review Officer (DRO) decision granted the Veteran service connection for tinnitus with an initial 10 percent disability rating effective February 20, 2008, and service connection for bilateral hearing loss with a noncompensable evaluation effective February 20, 2008. Thus, since the Veteran has been granted service connection for both tinnitus and bilateral hearing loss those issues are not before the Board since all the benefits sought on appeal have been granted. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 After a careful review of the Veteran's claims file the Board finds that further development is warranted for both issues on appeal. By way of a June 2011 rating decision the RO granted the Veteran service connection for PTSD with an initial 30 percent disability rating effective September 16, 2010. However, in June 2011 the Veteran filed a Notice of Disagreement (NOD) on the effective date of September 16, 2010, stating that he should be granted an effective date earlier than September 16, 2010, since that was just the date that he called to check on his claim. An effective date of June 3, 2010 for service connection for PTSD was assigned in a rating action in August 2012. However, the Veteran has not been furnished a Statement of the Case (SOC) that addresses the issue of entitlement to an effective date earlier than June 3, 2010, for the grant of service connection for PTSD. Consequently, the Board must remand to the RO to furnish an SOC and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). The Veteran was denied service connection for ankylosing spondylitis in part because there was no evidence to establish that his preexisting back disability was aggravated beyond a natural progression by his military service. The Board notes that according to the Veteran's service treatment records in July 1963 he underwent a chest x-ray as part of his enlistment examination and it was noted that he had kyphoscoliosis. In a November 2007 private treatment note it was stated that the Veteran reported a history of ankylosing of the spondylitis diagnosed in the mid 1970's. The Veteran has not been afforded a VA examination; thus, the Board finds that the Veteran should be scheduled for a VA examination to determine the current diagnosis of the Veteran's spondylitis and if it is at least likely as not related to the Veteran's military service. In addition, if it is related to the Veteran's kyphoscoliosis and if the Veteran's kyphoscoliosis was aggravated beyond a natural progression by the Veteran's military service. Prior to any VA examination, the RO should obtain any pertinent treatment records not already associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. Based on the Veteran's response, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 2. The Veteran should be scheduled for a VA examination by a qualified physician to ascertain the nature and likely etiology of the Veteran's ankylosing spondylitis. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should opine to all of the following questions: A) Does the Veteran have ankylosing spondylitis? B) If the Veteran has ankylosing spondylitis, the VA examiner should determine if it is at least as likely as not (50 percent probability or greater) that such condition had its onset in or is otherwise due to the Veteran's military service. C) The VA examiner should comment on the relationship between the current diagnosis of ankylosing spondylitis and his preexisting diagnosis of kyphoscoliosis. D) Does the evidence show that that the Veteran had kyphoscoliosis prior to entering his active duty military service? 1. If so, did the kyphoscoliosis grow more severe during his active duty service? 2. If so, was kyphoscoliosis aggravated (permanently worsened) beyond its natural progression by his military service? 3. Is it at least as likely as not (50 percent probability or greater) that ankylosing spondylitis identified post-service represented aggravation of the preservice kyphoscoliosis during service? The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 3. The RO shall furnish the Veteran a Statement of the Case that addresses the issue of entitlement to an effective date earlier than June 3, 2010, for the grant of service connection for PTSD. The RO shall return this issue to the Board only if the Veteran files a timely substantive appeal. 4. The RO should review the claims file to ensure that all the foregoing requested development is completed, and thereafter, arrange for any additional development indicated. The RO should then readjudicate the remaining issues on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). _________________________________________________ WAYNE M. BRAEUER 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).