Citation Nr: 1304868 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-11 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for degenerative disk disease of the spine (claimed as upper back/neck condition). 2. Entitlement to service connection for a chronic skin disorder. 3. Entitlement to an initial evaluation 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 Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from June 1965 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the Board at an October 2011 hearing conducted at the RO. A transcript of the hearing is of record. The Veteran filed a claim of service connection for a deviated septum in February 2011. It appears that the RO has not yet issued a rating decision addressing the Veteran's claim. As such, this issue is REFERRED to the RO for its consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995). 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 Veteran claims service connection for degenerative disk disease of the spine and a chronic skin disability. He also contends an initial evaluation in excess of 30 percent is warranted for his service-connected PTSD. For the reasons discussed below, the Veteran's claims must be remanded for additional development prior to a Board decision. Initially, the Board observes the Veteran has testified that service treatment records obtained by VA appear to be incomplete. See, e.g., Board hearing transcript at 24. To date, the request for service records has been limited to service treatment and personnel records. However, the Board notes that hospital/clinical records may be held at the facility at which clinical treatment was obtained. As such, on remand, further attempts should be made to obtain these treatment records. Further, at the Veteran's personal hearing in October 2011, the Veteran reported that he was in receipt of Social Security Administration (SSA) benefits mainly for his spine. The record does not reflect an attempt by VA to secure copies of the SSA determination pertaining to the claimant or the medical records considered in conjunction with that determination. The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. With respect to the service connection claims, the Veteran has not been provided a VA examination for his skin disorder, and was provided a VA examination for his back claim in January 2009. In both cases, the Veteran testified at the October 2011 Board hearing that the onset of these conditions was in service, and that he has had such disorders continuously since then. Further, the Veteran has submitted lay statements from his wife and a friend from service substantiating this assertion. The January 2009 VA examiner did not address the Veteran's assertion of a continuity of symptomatology, nor did he address his documented history of two cervical spine surgeries in approximately 1991 and 1997. Rather, the examiner simply noted that the Veteran "did pretty well until the last 3 years." VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Given the Veteran's assertions of in-service incurrence and continuity of symptomatology, the Veteran must be provided a new VA examination to determine whether his current spine and/or skin disorders are etiologically related to his active service. With respect to the Veteran's increased rating claim, the Veteran was assigned an initial 30 percent evaluation based on a January 2009 examination. At the October 2011 Board hearing, the Veteran asserted that his PTSD has increased in severity since the last examination. Therefore, a new VA examination is warranted. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). As a final note, the Veteran testified at the October 2011 hearing that he has received continued VA treatment. VA treatment records were last associated with the claims file in April 2011. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the dates of his in-service back injuries, as well as any hospitalization or clinical treatment, within a three-month timeframe. If such treatment was obtained from a private source, the Veteran should be requested to provide the appropriate medical releases to allow such records to be obtained. All relevant treatment records identified by the Veteran should then be obtained. 2. Associate with the claims file any outstanding VA treatment records and reports generated since April 6, 2011. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 4. Schedule the Veteran for an appropriate VA examination to address the nature and etiology of any currently diagnosed back disorder (including the lumbar, thoracic and cervical spines). All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Following a review of the claims file and physical examination of the Veteran, the examiner should offer a current diagnosis of any disability of the lumbar, thoracic and/or cervical spine, and provide an opinion as to whether any current spine disorder is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), etiologically related to his active service. In offering this opinion, the examiner must address the Veteran's assertions of multiple in-service injuries and continuity of symptomatology and treatment since as well as the other lay statements of record including the February 2007 statement from R.G. and the statement from the Veteran's spouse received in January 2002. A complete rationale should be given for all opinions and conclusions expressed. 5. Schedule the Veteran for an appropriate VA examination to address the nature and etiology of any currently diagnosed skin disorder. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Following a review of the claims file and physical examination of the Veteran, the examiner should offer a current diagnosis of any skin disorder, and provide an opinion as to whether such disorder is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), etiologically related to active service. In offering this opinion, the examiner must address the Veteran's assertions of in-service incurrence and continuity of symptomatology since as well as the other lay statements of record including the February 2007 statement from R.G. and the statement from the Veteran's spouse received in January 2002. A complete rationale should be given for all opinions and conclusions expressed. 6. Schedule the Veteran for a VA psychiatric examination to determine the current degree of severity of his PTSD. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should identify the nature, frequency, and severity of all current manifestations of PTSD. The examination report should include a full psychiatric diagnostic assessment including a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. The examiner should specifically comment on the impact of the Veteran's PTSD upon his social and industrial activities including his employability. A complete rationale should be given for all opinions and conclusions expressed. 7. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 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). _________________________________________________ S. L. Kennedy 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).