Citation Nr: 1303877 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 07-23 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a rating greater than 10 percent for service-connected right ankle disability. 2. Entitlement to a rating greater than 10 percent for service-connected degenerative disc disease of the thoracolumbar spine. 3. Entitlement to a rating greater than 10 percent for service-connected degenerative disc disease of the cervical spine. 4. Entitlement to a permanent and total disability rating. 5. Entitlement to a higher disability rating for service-connected posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling from December 6, 2007 to February 19, 2008, and 50 percent disabling from February 20, 2008 to September 11, 2008, to include the issue of entitlement to a total disability rating based upon unemployability (TDIU) for the entire period. (The issues involving whether an overpayment of disability compensation benefits, in the calculated amount of $8,012.30, was improperly created due solely to administrative error by the Department of Veterans Affairs, and entitlement to waiver of recovery of that overpayment are addressed in a separate decision under a different docket number). REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran has verified active service from September 1981 to September 1985, from March 1987 to March 1990, from March 1999 to January 2000, and from January 2004 to March 2005. His National Guard service includes a period of active duty for special work (ADSW) from April 6, 2005 to May 4, 2005, and a period of Active Guard/Reserve (AGR) from June 1, 2005 to December 6, 2007. This case comes before the Board of Veterans' Appeals on appeal from rating decisions by Regional Offices (ROs) of the Department of Veterans Affairs (VA). The RO in Manchester, New Hampshire currently holds jurisdiction over the claims. A review of the Virtual VA electronic records storage system does not reveal any additional, relevant documents not currently associated with the paper claims folder. The issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. The Veteran will be notified if any further action on his part is required. REMAND One of the matters the Board must address is which issue or issues are properly before it at this time. 38 U.S.C.A. § 7105(a). An appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the claimant. In essence, the following sequence is required: there must be a decision by the RO, the claimant must express timely disagreement with the decision (NOD), VA must respond by explaining the basis for the decision to the claimant (SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his/her argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. An August 2008 RO rating decision denied increased ratings for PTSD, tinnitus, thoracolumbar spine disability, cervical spine disability and right ankle disability. In a written statement received in September 2008, the Veteran's representative sought a reconsideration of the RO's August 2008 decision pertaining to the PTSD disability claim. It was specifically asserted that the Veteran did not intend to submit an NOD at that time. In a written statement received in October 2008, the Veteran's representative submitted a timely NOD with respect to the RO's August 2008 decision denying increased ratings for PTSD, thoracolumbar spine disability, cervical spine disability and right ankle disability. It was asserted that the NOD was intended to protect an effective date of December 5, 2007 for any award of increased benefits. An RO rating decision dated October 2008 awarded a 50 percent rating for PTSD effective February 20, 2008, and a 100 percent rating effective September 12, 2008. Notably, this rating did not award the maximum amount of benefits sought in the October 2008 NOD. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In a written statement received in January 2009, the Veteran's representative reported that the Veteran was "grateful" for the 100 percent rating for PTSD. At that time, the Veteran submitted a timely NOD with respect to the issue as to whether he should be awarded a permanent and total disability rating. On December 2, 2009, the RO furnished the Veteran an SOC on the issues of entitlement to increased ratings for thoracolumbar spine disability, cervical spine disability and right ankle disability. On December 3, 2009, the RO furnished the Veteran an SOC on the issue of entitlement to a permanent and total disability rating. In January 2010, the Veteran submitted a VA Form 9 which checked Box 9A, indicating his intent to appeal all issues listed on SOCs furnished by the RO. Based upon the procedural history, the Board finds that the Veteran has perfected his appeal to the Board on the issues of entitlement to increased ratings for thoracolumbar spine disability, cervical spine disability and right ankle disability as well as entitlement to a permanent and total disability rating. These issues have been listed on the title page. With respect to the PTSD claim, the Veteran's timely filed NOD was directed towards both a higher disability rating and an effective date of award until "December 5, 2007." In the opinion of the Board, the Veteran's report of being "grateful" for an award of increased benefits does not clearly express his desire to withdrawal his entire appeal, which is presumed to be a 100 percent rating effective December 5, 2007. See AB, 6 Vet. App. at 38 (referring to the requirement that a claimant clearly express an intent to limit an appeal to support a withdrawal of claim finding). Thus, the Board will list this issue on the title page for procedural purposes only. See Manlincon v. West, 12 Vet. App. 238 (1999) (the filing of an NOD initiates appellate review which requires VA to furnish the claimant an SOC, which is an issue requiring remand rather than referral to the RO). In September 2008, the Veteran submitted a Notice of Award reflecting that the Veteran became entitled to disability benefits with the Social Security Administration (SSA) effective December 2006. In September 2008, the RO initiated a request for SSA records but no response was received. As these records may be potentially relevant to the claims at hand, the Board must remand this case to obtain all medical and legal documents in the possession of SSA. See Golz v. Shinseki, 590 F.3d 1343 (Fed. Cir. 2010) (VA has a duty to assist a claimant in obtaining identified records when a reasonable possibility exists that the records are relevant to the claim). With respect cervical and thoracolumbar spine disability claims, the Board finds that further VA examination is warranted. A February 2008 private chiropractor report describes the Veteran as having "joint fixation" at several spinal levels, probably secondary to myospasm. A September 2008 VA chiropractor consultation noted the presence of accentuated dorsal kyphosis with a significant visceroptosis. The Board finds that clarification is necessary to determine whether the Veteran manifests ankylosis of any spinal segment, or whether there has been muscle spasm or guarding severe enough to result in abnormal spinal contour. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (providing for ratings in excess of 10 percent where there is guarding or muscle spasm severe enough to result in abnormal spinal contour, or ankylosis). As noted above, the Veteran has initiated an appeal on the issue of entitlement to a higher disability rating for service-connected PTSD, evaluated as 30 percent disabling from December 6, 2007 to February 19, 2008, and 50 percent disabling from February 20, 2008 to September 11, 2008, to include the issue of entitlement to TDIU for the entire period. As such, the Board must remand this issue to the RO for issuance of an SOC. See Manlincon, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since December 3, 2009. 2. Associate with the claims folder all medical and legal documents pertaining to the Veteran's award of disability benefits from the Social Security Administration. 3. Upon completion of the above, schedule the Veteran for appropriate examination(s) to determine the current nature and severity of service-connected cervical and thoracolumbar spine disabilities as well as right ankle disability. The claims folder contents must be made available to the examiner for review. Following interview and examination of the Veteran as well as review of the claims folder, provide the following findings: a) describe all orthopedic manifestations of service-connected thoracolumbar spine and cervical spine disabilities which includes opinion as to the extent, if any, of functional loss of use of the lumbar/cervical spine due to pain, incoordination, weakness, pain on flare-ups and fatigability with use. If feasible such findings should be portrayed in terms of degrees of additional loss of motion; b) explain whether there is any ankylosis of a spinal segment, to include review of the February 2008 private chiropractor's description of joint fixation at several spinal levels; c) explain whether there is muscle spasm or guarding severe enough to result in abnormal spinal contour, to include review a September 2008 VA chiropractor consultation note describing the presence of accentuated dorsal kyphosis with a significant visceroptosis; d) describe all chronic neurologic manifestations of the service-connected thoracolumbar spine and cervical spine disabilities, if any, to include specifying any and all neurologic symptoms (e.g., neuritis, neuralgia, sensory loss, body part dysfunction, etc.) with reference to the nerve(s) affected; and e) describe all disability associated with service-connected right ankle disability which includes opinion as to the extent, if any, of functional loss of use of the right ankle due to pain, incoordination, weakness, pain on flare-ups and fatigability with use. If feasible such findings should be portrayed in terms of degrees of additional loss of motion. 4. Furnish the Veteran an SOC on the issue of entitlement to a higher disability rating for service-connected PTSD, evaluated as 30 percent disabling from December 6, 2007 to February 19, 2008, and 50 percent disabling from February 20, 2008 to September 11, 2008, to include the issue of entitlement to TDIU for the entire period. The Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue. Thereafter, this issue is to be returned to the Board only if an adequate and timely substantive appeal is filed. 5. Thereafter, readjudicate the claims remaining on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs