Citation Nr: 1303208 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-14 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a back disorder, to include as secondary to a service-connected disability. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). 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 VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in May 2006, August 2006, January 2007, and August 2008. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). The Veteran contends that he has a back disorder as a result of service, either due to injuries sustained in a motor vehicle accident in March 1968 or which developed because of his service-connected knee disabilities. The Board notes that although a September 2006 VA medical opinion found the Veteran's mild L5-S1 disc bulge and bilateral facet hypertrophy compatible with degenerative osteoarthritis was most likely related to age and heavy body weight, the examiner did not address whether the Veteran's low back disorder had been aggravated by his service-connected disabilities. Therefore, the Board finds an additional medical opinion is required prior to appellate review. The Veteran also contends that his service-connected PTSD is more severe than his presently assigned 30 percent rating. In correspondence dated in November 2010 he stated, in essence, that his August 2009 VA examination was inadequate. He reported that he received little treatment prior to moving east, but that over the past several years he had received weekly therapy at the Vet Center in Louisville, Kentucky. The Board notes that Vet Center records dated over this period have not been obtained, but that VA treatment records dated in March 2012 noted the Veteran reported having three to four panic attacks every week and having constant anxiety. As the Veteran's PTSD has not been evaluated by VA examination since August 2009 and he has identified additional treatment records pertinent to his claim, the Board finds further development as to this matter is required. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain all pertinent VA and Vet Center treatment records, unless further efforts would be futile. Attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has a present back disorder that was incurred or aggravated during or as a result of active service or which is proximately due to or was aggravated by a service-connected disease or injury. All indicated tests and studies are to be performed. The examiner must review the claims file and must note that review in the report. 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, with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Schedule the Veteran for an appropriate VA examination for an opinion as to the nature and extent of his service-connected PTSD including any identifiable increases or decreases in manifest symptomatology since August 2004 (or within the year prior to his August 2005 claim). All indicated tests and studies are to be performed. The examiner must review the claims file and must note that review in the report. 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, with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case 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. 2012). _________________________________________________ F. JUDGE FLOWERS 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).