Citation Nr: 1304980 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 05-12 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to an increased rating for PTSD, evaluated as 50 percent disabling prior to July 24, 2007 and as 70 percent disabling thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). 4. Whether the April 21, 1970, Regional Office decision assigning a noncompensable disability evaluation for the Veteran's history of intestinal parasitism was clearly and unmistakably erroneous (CUE). REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from November 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2008, the Board denied an increased rating for the Veteran's PTSD and remanded the issue of entitlement to service connection for hypertension. It also dismissed without prejudice a request for revision of an April 1970 RO decision which assigned a noncompensable evaluation for intestinal parasitism on the basis of clear and unmistakable error. The Veteran appealed the Board's denial of a higher evaluation for PTSD to the U.S. Court of Appeals for Veterans Claims (Court). In August 2009 the Court granted the parties' Joint Motion for Partial Remand (Joint Motion) and returned the issue of an increased rating for PTSD to the Board for compliance with the instructions in the joint motion. The portion of the Board decision which dismissed without prejudice the request for revision of an April 1970 RO decision was left undisturbed. While the PTSD issue was pending before the Court, the RO completed appropriate development on the issue of entitlement to service connection for hypertension, and that issue was recertified to the Board. In May 2010 the Board remanded the PTSD issue and denied service connection for hypertension. The Veteran appealed the denial of service connection to the Court. In a December 2010 order, the Court granted the parties' joint motion for remand, vacating the Board's May 2010 decision and remanding the issue of entitlement to service connection for hypertension for compliance with the instructions in the joint motion. The Board notes that while the issue of a higher evaluation for PTSD was in remand status, the RO printed and added to the record a September 2007 rating decision which granted an evaluation of 70 percent for PTSD from July 24, 2007. This rating decision was apparently promulgated after the Veteran's appeal was certified to the Board in 2007. In light of the grant of a higher evaluation, the issue regarding the evaluation of the Veteran's PTSD is correctly stated above. Additionally, in May 2011, the Veteran's representative filed a new request for revision of an April 1970 RO decision which assigned a noncompensable evaluation for intestinal parasitism on the basis of clear and unmistakable error. In a November 2011, the RO denied the request. The Veteran acquired new representation, and in June 2012, the Veteran's attorney filed a notice of disagreement with the November 2011 RO decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Service Connection for Hypertension and Increased Rating for PTSD In the August 2009 Joint Motion, the parties pointed out that the Veteran, in his March 2005 VA Form 9, had stated that he was hospitalized at Methodist Hospital about six months previously. The Joint Motion instructed the Board to attempt to obtain those records. Subsequently, in May 2010, the Board remanded the claim to the RO via the AMC. The Board instructed the RO/AMC to contact the Veteran and request that he complete an appropriate release for records of treatment by Methodist Hospital. The Board instructed that all attempts to secure this evidence should be documented in the record. In October 2010, the Veteran submitted a signed VA form 21-4142 (authorization and consent to release information to the Department of Veterans Affairs), authorizing VA to obtain his treatment records from Methodist Hospital dating from June 2004 through the present. Although the Veteran himself submitted some records from Methodist Hospital concerning an emergency room visit conducted in June 2004, the Veteran also indicated that he had received treatment at Methodist Hospital from 2004 through the present time. Neither the claims file nor the Virtual VA file document any efforts to secure this evidence. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, additional remand is required for compliance with the May 2010 remand instructions. TDIU In a December 2009 statement to his congressman, the Veteran stated that he was attempting to get a 100 percent disability rating. In an October 2010 statement, the Veteran's accredited representative indicated that the Veteran wanted a higher disability rating for his PTSD and/or a TDIU. The Board notes that the Veteran has not filed a formal claim for a TDIU. However, on these facts, the claim for a TDIU is essentially a component of the claim for a higher rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). (holding that where a veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU). In an effort to obtain all relevant information regarding this claim, the Veteran should be asked to complete a formal application for a TDIU. CUE Claim As noted above, in a November 2011 rating decision, the RO denied the Veteran's request for revision of an April 1970 RO decision which assigned a noncompensable evaluation for intestinal parasitism on the basis of clear and unmistakable error. In June 2012, the Veteran's attorney filed a notice of disagreement with the November 2011 decision. As the Veteran has not been provided a statement of the case in response to the June 2012 notice of disagreement, a remand is required for the issuance of a statement of the case on this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should issue a statement of the case to the appellant and his attorney on the issue of whether an April 1970 RO decision which assigned a noncompensable evaluation for intestinal parasitism should be revised on the basis of clear and unmistakable error. He should also be informed of the requirements to perfect an appeal with respect to this issue. If the Veteran perfects an appeal with respect to this matter, the RO or the AMC should ensure that any indicated development is completed before the case is returned to the Board. 2. The RO or the AMC should furnish to the Veteran a VA form 21-8940, to enable him to file a formal application for a TDIU. 3. The RO or the AMC should send to the Veteran and his representative a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claims for higher rating and for a TDIU. The RO's or the AMC's letter should specifically explain how to establish entitlement to a TDIU. The RO or the AMC should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, the RO or the AMC should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. Additionally, in accordance with the VA form 21-4142 already of record, the RO or the AMC should obtain the Veteran's treatment records from Methodist Hospital dating from June 2004 through the present. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO or the AMC should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO or the AMC should arrange for the Veteran to undergo VA contracted examination, by an appropriate physician, at a VA contracted facility. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected disabilities, either individually or in concert, render him unable to obtain or retain substantially gainful employment. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. The RO or the AMC should also undertake any other development it determines to be warranted. 7. Then, the RO or the AMC should readjudicate the Veteran's claims (to include consideration of 38 C.F.R. §§ 3.321(b) and 4.16(b)). If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, 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). 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). _________________________________________________ MICHAEL LANE 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).