Citation Nr: 1309192	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  09-47 027	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral carpal tunnel syndrome.

2.  Entitlement to service connection for erectile dysfunction.

3.  Entitlement to service connection for a right shoulder disability.

4.  Entitlement to service connection for a left shoulder disability.

5.  Entitlement to service connection for a right elbow disability.

6.  Entitlement to service connection for diverticulosis.

7.  What evaluation is warranted for posttraumatic stress disorder (PTSD) from May 20, 2008 to February 1, 2010?

8.  What evaluation is warranted for PTSD from February 2, 2010 to February 7, 2012?

9.  What evaluation is warranted for PTSD since February 8, 2012?

10.  What evaluation is warranted for left ear hearing loss prior to August 18, 2010?

11.  What evaluation is warranted for bilateral hearing loss since August 18, 2010?

12.  Whether a valid notice of disagreement with the rating decision dated August 31, 2009 has been received. 


REPRESENTATION

Appellant represented by:	Kenneth L. LaVan, Attorney at Law


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active military service from May 1979 to June 2005.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

With respect to the issue of entitlement to a compensable evaluation for hearing loss, the Board notes that prior to August 18, 2010, service connection was only in effect for left ear hearing loss.  By rating decision dated in April 2012, service connection was established for right ear hearing loss effective August 18, 2010.  Thus, although the Veteran has only disagreed with the evaluation assigned for his left ear, the Board has recharacterized the appeal to include the issue of entitlement to a compensable evaluation for bilateral hearing loss since August 18, 2010.

The Board notes that the Veteran has been diagnosed as having diverticulosis (the presence of diverticula, particularly of colonic diverticula, in the absence of inflammation) and not diverticulitis (inflammation of a diverticulum, especially inflammation related to colonic diverticula, which may undergo perforation with abscess formation).  See Dorland's Illustrated Medical Dictionary 497-498(28th Ed. 1994).  Thus, the Veteran's claim for entitlement to service connection for diverticulitis has been recharacterized as a claim for entitlement to service connection for diverticulosis.  

The issues of entitlement to service connection for erectile dysfunction, a right shoulder disability, a left shoulder disability, and whether a valid notice of disagreement with the rating decision dated August 31, 2009 with respect to the ratings assigned for bilateral lower extremity peripheral neuropathy has been received, are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1.  Service connection for bilateral carpal tunnel syndrome was denied by a November 2005 rating decision that was not appealed.

2.  Evidence submitted subsequent to the November 2005 rating decision is either cumulative or redundant of the evidence of record at the time of the November 2005 rating decision and does not relate to an unestablished fact necessary to substantiate the claim.

3.  The Veteran does not have a chronic right elbow disability that is related to active service.

4.  The Veteran's diverticulosis is not related to active service.

5.  From May 20, 2008 to February 1, 2010, the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity.

6.  From February 2, 2010 to February 7, 2012, the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas.

7.  Since February 8, 2010, the Veteran's PTSD has not been productive of total occupation and social impairment.

8.  Prior to August 18, 2010, service connection had not established for right ear hearing loss; and the Veteran's left ear hearing was, at its worst, Level I. 

9.  Since August 18, 2010, the Veteran's bilateral hearing loss has been productive of, at its worst, Level I hearing in both ears. 


CONCLUSIONS OF LAW

1.  The November 2005 rating decision which denied a claim of entitlement to service connection for bilateral carpal tunnel syndrome is final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

2.  New and material evidence has not been submitted to reopen a claim of entitlement to service connection for bilateral carpal tunnel syndrome.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  A chronic right elbow disability was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

4.  Diverticulosis was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

5.  From May 20, 2008 to February 1, 2010, the Veteran's PTSD met the criteria for a 50 percent evaluation.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012).

6.  From February 2, 2010 to February 7, 2012, the Veteran's PTSD met the criteria for a 70 percent evaluation.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.7, 4.130, Diagnostic Code 9411.

7.  Since February 8, 2012, the Veteran's PTSD has not met the criteria for an evaluation greater than 70 percent.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.7, 4.130, Diagnostic Code 9411.

8.  Prior to August 18, 2010, the Veteran's left ear hearing loss did not meet the criteria for a compensable evaluation.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2012). 

9.    Since August 18, 2010, the Veteran's bilateral hearing loss has not met the criteria for a compensable evaluation.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6100. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in May 2008, August 2008, April 2010, and September 2010 of the information and evidence needed to reopen, substantiate, and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in June 2012. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The Veteran has not been afforded a VA examination with an opinion as to the etiology of his diverticulosis.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In this case, as no medical evidence has been presented showing treatment of diverticulosis in service or the possibility that diverticulosis is related to service, the Board finds that an etiology opinion is not "necessary."  

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order. 

As service connection, an initial rating, and an effective date have been assigned for the Veteran's PTSD, the notice requirements of 38 U.S.C.A. § 5103(a) have been met with respect to that issue as well.   

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  He was offered the opportunity to present pertinent evidence and testimony.  In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Request to Reopen Claim for Carpal Tunnel Syndrome

In a November 2005 rating decision VA denied entitlement to service connection for bilateral carpal tunnel syndrome.  The Veteran did not appeal this decision, and no new evidence related to this issue was received within the year following the denial.  Thus, the November 2005 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

The Veteran's application to reopen this claim was received in June 2008.  A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a).

The Board notes that this claim appears to have been adjudicated in its merits in the April 2012 Supplemental Statement of the Case.  On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims.  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

The November 2005 rating decision denied service connection for carpal tunnel syndrome on the basis that the medical evidence of record failed to show that the disability had been clinically diagnosed.  The rating decision noted that the Veteran's service treatment records showed a complaint of the arms feeling numb with an assessment of bilateral carpal tunnel likely source but no evidence of any testing was included in that record.  The rating decision noted that on VA examination in November 2005, both Tinel's sign and Phalen's test were negative.  The examiner found no pathology upon which to render a diagnosis.  

In the Veteran's May 2004 Report of Medical History he reported a history of an impaired use of arms, legs, hands, or feet and noted carpal tunnel.

Given the foregoing, new and material evidence would consist of evidence of a current diagnosis of carpal tunnel syndrome.  Additional evidence received since the November 2005 rating decision includes various VA and private treatment records, none of which include a diagnosis of carpal tunnel syndrome.

Thus, although the VA and private medical records are neither cumulative nor redundant, because there is still no evidence of a diagnosis of carpal tunnel syndrome in either upper extremity, the evidence received subsequent to November 2005 rating decision is not new and material and does not serve to reopen the claim.  

Service Connection

The Veteran seeks service connection for a right elbow disability and diverticulosis.  

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  The first question that must be addressed, therefore, is whether a chronic right elbow disorder or diverticulosis was factually shown during service.  The Board concludes they were not.  

The service treatment records indicate that in February 2005 the Veteran reported a right elbow jump injury.  Despite this report the Board cannot conclude a chronic right elbow condition was incurred during service.  Treatment for a disorder in service cannot be considered treatment for a chronic disorder unless there is some indication that a chronic disorder exists.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.   For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."   In addition, on the clinical examination for the Medical Board in February 2005, the Veteran's upper extremities were evaluated as normal.  The March 18, 2005, Medical Evaluation Board noted that the Veteran stated that he did have a right elbow injury from jumping, but that it had since resolved.  

The service treatment records are absent complaints, findings or diagnosis of diverticulitis/diverticulosis during service.  At his May 2004 periodic examination the Veteran denied ever having intestinal trouble.  Thus, there is no medical evidence that shows that the Veteran suffered from diverticulitis or diverticulosis during service. 

When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service.  38 C.F.R. § 3.303(d).  To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The Veteran underwent VA examination in March 2009 at which time neurological examination of the right upper extremity demonstrated normal motor function and sensory function as well as normal reflexes of the biceps and triceps.  A September 2009 VA examination noted the appellant's report that he was a paratrooper and over the years he developed problems with his right elbow.  Physical examination yielded a diagnosis of a of normal right elbow.        

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110; Brammer v. Derwinski, 3 Vet. App. 223   (1992) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability.)  Absent a showing of a current chronic right elbow disability which could be related to service, entitlement to service connection for a right elbow disability must be denied.

With respect to diverticulosis, no medical professional has ever related this condition to the appellant's military service.  Thus, the record is absent evidence of in-service incurrence of diverticulosis.  There is no medical evidence of a nexus between the current diagnosis of diverticulosis and the Veteran's active duty service.  The Board has reviewed all service treatment records, all VA medical records, as well as private medical records.  These records do not include any opinion linking either a right elbow disorder or diverticulitis/diverticulosis to service.  Although there is current evidence of diverticulosis, and although the Veteran reported a right elbow injury in service; without competent evidence linking a current right elbow disorder to service or linking the Veteran's diverticulosis to service, the benefits sought on appeal cannot be granted.   

As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for PTSD.  As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

In addition, the Veteran is requesting a higher rating for his already established service-connected left ear hearing loss disability.  As such, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007)

PTSD

Under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Codes 9411-9440, a mental condition that has been formally diagnosed, but the symptoms of which are not severe enough either to interfere with occupational and social function or to require continuous medication warrants a 0 percent evaluation.  

A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  

The next higher rating of 50 percent also requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as:  suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or 
depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  

The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as:  grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id. 

The Veteran's service-connected PTSD has been evaluated as 30 percent disabling prior to February 2, 2010, 50 percent disabling from February 2, 2010 to February 7, 2012, and 70 percent disabling since February 8, 2012.

The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations.  Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

In the Mauerhan case, the court rejected the argument "that the DSM-IV criteria should be the exclusive basis in the schedule governing ratings for PTSD."  See Mauerhan, 16 Vet. App. at 443.  Rather, distinctive PTSD symptoms in the DSM-IV are used to diagnosis PTSD rather than evaluate the degree of disability resulting from the condition.  Although certain symptoms must be present in order to establish the diagnosis of PTSD, as with other conditions, it is not the symptoms but their effects that determines the level of impairment.  Id.  

The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness."  See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240 (1995).

According to DSM-IV, a global assessment of functioning score of 71 to 80 indicates the examinee has, if at all, symptoms that are transient or expectable reactions to psychosocial stressors but no more than slight impairment in social, occupational or school functioning.  A global assessment of functioning score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships.  A global assessment of functioning score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning.  A global assessment of functioning score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning.  A global assessment of functioning score of 31 to 40 indicates the examinee has some impairment in reality testing or communication or major impairment in several areas, such as work or school.  A global assessment of functioning score of 21 to 30 indicates that the examinee's behavior is considerably influenced by delusions or hallucinations, has serious impairment in communication or judgment, or is unable to function in almost all areas of life.  

A private March 3, 2008 Intake Examination record indicates that the Veteran reported nightmares, sadness, and poor sleep.  The Veteran reported that he had been married 27 years and had a stable, supportive marital relationship.  The Veteran denied suicidal thoughts and feelings.  The Veteran was oriented to time, place, person, and situation.  Thought process revealed no evidence of delusions or hallucinations.  Memory functioning was intact.  The appellant's intellectual level and judgment were assessed as above average.  As noted above, mood was depressed.  Anxiety level was mildly elevated secondary to the decision to seek treatment and consistent with the military mindset that officers do not seek mental health treatment.  The private psychologist diagnosed chronic PTSD and moderate major depressive disorder.  A global assessment of functioning score of 60 was assigned.  

The Veteran underwent VA examination in October 2008 at which time he reported constant nightmares, middle insomnia, and mild depression.  The Veteran stated that he averaged about six hours of sleep per night.  Mental status examination demonstrated orientation, communication, speech, and concentration were within normal limits.  Appearance, hygiene, behavior, and thought processes were appropriate.  Affect and mood were normal.  Panic attacks, obsessional rituals, suicidal ideation, and homicidal ideation were absent.  There was no suspiciousness, delusional history, or hallucination history present; and at the time of examination, there was no delusion or hallucination observed.  Memory was impaired and the degree was mild.  The examiner diagnosed the Veteran with PTSD and assigned a global assessment of functioning score of 65-70.  The examiner noted that the best description of the Veteran's psychiatric impairment was that his psychiatric symptoms were mild or transient but caused occupational and social impairment with decreased in work efficiency and occupation tasks only during periods of significant stress.  The Veteran had no difficulty understanding commands and he did not appear to pose any threat of danger or injury to self or others.  

The Veteran underwent a private Mental Capacity Assessment in November 2009.  This private record was received by VA on February 2, 2010.  The examiner noted slight limitation in the ability to carry out detailed instructions; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance.  The examiner noted moderate limitation in the ability to maintain attention and concentration for extended periods and marked limitation in the ability to complete a normal workweek without interruptions from psychologically based symptoms as well as the ability to interact appropriately with the general public.  The examiner also noted extreme limitation in the ability to complete a normal workday without interruptions from psychologically based symptoms and the ability to perform at a consistent pace with a one hour lunch break and two 15 minute rest periods.  Further, the examiner noted moderate limitation in the Veteran's ability to respond appropriately to changes in the work setting.  The examiner noted that the Veteran continued to experience classic and chronic PTSD symptoms (e.g., nightmares, hypervigilance, avoidance, sleep disturbance) as well as difficulty with attention/concentration and depressive symptoms.

Private medical records dated between November 2009 and January 2010 show complaints of nightmares and sleep disturbance.

The Veteran underwent VA examination in May 2010 at which time he reported taking Effexor daily and receiving psychotherapy as often as two times per week with fair response.  Mental status examination demonstrated that orientation was within normal limits.  Appearance, hygiene, and behavior were appropriate.  The Veteran maintained good eye contact.  Affect and mood showed mood swings, anxiety, findings of anhedonia, anergia, inability to do the physical things he used to do, and depressed mood.  Communication was grossly impaired due to hearing loss and tinnitus.  Speech was within normal limits.  The Veteran showed impaired attention and/or focus.  Panic attacks were absent, and there was no suspiciousness present.  Hallucinations were not reported or observed.  There was no obsessive compulsive behavior.  Thought processes were appropriate.  The Veteran was able to understand directions, and he did not have slowness of thought or appear to be confused.  His abstract thinking was normal.  His memory was mildly impaired.  Suicidal and homicidal ideation were absent.  The examiner noted that there were behavioral, cognitive, social, affective or somatic symptoms attributable to PTSD described as depression and isolation to home.  A global assessment of functioning score of 58 was assigned.  The examiner noted that the Veteran's unemployment was due to his worsening PTSD.

The examiner noted that the Veteran occasionally had some interference in performing activities of daily living because of his insomnia and foot pain, that he had difficulty establishing and maintaining effective family role functioning because he was unemployed, that he had occasional interference with recreation or leisurely pursuits because of his foot pain and neuropathy, and that he had constant interference with physical health because of his pain.  The examiner noted that the Veteran had no difficulty understanding commands.  

The Veteran underwent VA examination in February 2012.  A Disability Benefits Questionnaire was completed by the examiner.  The examiner noted that the Veteran had two psychiatric diagnoses, PTSD and major depressive disorder.  The examiner also noted that it was not possible to differentiate what symptoms were attributed to each diagnosis due to overlapping symptoms.  Thus, the Board is required to attribute all his psychiatric symptoms to his PTSD for rating purposes.  Mittleider v. West, 11 Vet. App. 181 (1998).  The examiner noted that the Veteran had the following symptoms:  depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting.  The Veteran reported good relationships with his wife, his two sons, his parents, and his three brothers.  The Veteran stated that he had no friends and was extremely isolated.  He reported he had trouble sleeping but denied history of suicide attempts, violent behavior, homicidal thoughts, and suicidal thoughts over than passive thoughts of death.  The Veteran reported that his activities were reading and spending time with his grandson.  The examiner noted that the Veteran had total occupational and social impairment.  Global assessment of functioning scores of 50 were assigned for both PTSD and major depression.

In a letter to VA dated in December 2012, the Veteran's wife states,

In my letter to the DAV dated June 5, 2008 regarding my husband's post-traumatic stress disorder and insomnia I stated:  "Immediately following my husband's return from the Persian Gulf War in the summer of 1991 he experienced violent horrifying nightmares.  These nightmares continue to this day.  The frequency of the dreams varies from two to five nights per week and averages three nights per week.  When he dreams he often screams and "fights" and awakens extremely frightened.  During these dreams he frequently unintentionally hits me.  In 1992 I informed my parents and my brothers of his dreams and told them not to blame him if he did something violent to me because it would have been a result of the nightmares.  [The Veteran] is usually [] unable to return to sleep following one of these nightmares.  The resulting insomnia makes him tired.  He is often exhausted following a bad night."  Since I made this statement his condition has only worsened.  His nightmares are more frequent.  The combination of his pain meds and antidepressants cause erectile dysfunction.  We no longer sleep in the same room.  Marital relations are infrequent at best.  The antidepressants he takes don't seem to be as effective as they once were.  He is depressed all the time and now lives like a hermit.  He has no contact with any of his old military friends.  In fact, he has no friends.  He rarely does anything outside the home.  ..."

In order to warrant a higher evaluation prior to February 2, 2010, the record needs to demonstrate that the Veteran's PTSD symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  

The findings of record indicate that prior to February 2, 2010, the Veteran's PTSD symptoms match some of the rating criteria for a 30 percent rating (depressed mood, anxiety, and mild memory loss).  The record shows consistent complaints of nightmares, depression, and sleep impairment as well as symptoms of anxiety and mild memory impairment.  In addition, global assessment of functioning scores assigned were between 60 and 65-70.  The lowest global assessment of functioning score of 60 assigned prior to the effective date of service connection for PTSD is indicative of moderate symptoms such as flat affect and circumstantial speech, occasional panic attacks or moderate difficulty in social and occupational functioning.  As noted above, the October 2008 VA examiner stated that the Veteran's psychiatric symptoms were mild or transient but caused occupational and social impairment with decrease in work efficiency and occupational tasks only during periods of significant stress.  

Resolving reasonable doubt in the Veteran's favor, the Board finds that prior to February 8, 2012, the Veteran's PTSD was productive of occupational and social impairment, but with reduced reliability and productivity.  As noted by the Veteran at the October 2008 VA examination, he had constant symptoms of nightmares, middle insomnia, and mild depression which affected his total daily functioning.  The Veteran's statements in combination with a global assessment of functioning score of 60 assigned for the Veteran's symptoms of nightmares, overwhelming sadness, and poor sleep in March 2008 support an evaluation of 50 percent for the rating period from May 20, 2008 to February 1, 2010.  

In order to warrant a higher evaluation than 50 percent for the period May 20, 2008 to February 7, 2012, the record needs to demonstrate that the Veteran's PTSD symptoms cause occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  

The findings of record from February 2, 2010 to February 7, 2012, indicate that the Veteran's PTSD symptoms match some of the rating criteria for a 30 percent rating (depressed mood, anxiety, and mild memory loss); some of the rating criteria for a 50 percent rating (impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships) as well as some of the criteria for a 70 percent rating (difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships).    

The Veteran's treating psychologist noted an inability to complete a normal workday without interruptions from psychologically based symptoms and the inability to perform at a consistent pace with a one hour lunch break and two 15 minute rest periods.  The global assessment of functioning score of 58 assigned by the May 2010 VA examiner is indicative of moderate symptoms.  The VA examiner, however, noted that the Veteran's unemployment was due to his worsening PTSD.  The examiner also noted that the Veteran had difficulty maintaining effective work and social relationships because of his isolation to home and that he had difficulty maintaining effective family role functioning due to his unemployment.  In the Board's view, the global assessment of functioning score of 58 assigned by the VA examiner is inconsistent with the Veteran's actual PTSD symptoms exhibited.  

Although there is medical evidence that characterizes the Veteran's PTSD symptoms as moderate, this is a case where the positive evidence and the negative evidence are at least in a state of equipoise.  Taking such evidence into account, and by resolving all doubt in the Veteran's favor, the Board finds that since February 2, 2010, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas.    
    
Although the Veteran reported a long relationship with his wife, his children, his siblings, and his parents, his wife noted in her letter their relationship is strained, that he lives like a hermit, that he has no contact with any of his old military friends, that he has no friends, and that he rarely does anything outside the home.

Accordingly, the record supports a grant of a 70 percent rating for PTSD from February 2, 2010, but no higher.

The Veteran's statements in combination with a global assessment of functioning score of 60 assigned for the Veteran's symptoms of nightmares, overwhelming sadness, and poor sleep in March 2008 support an evaluation of 50 percent for the rating period from May 20, 2008 to February 1, 2010.  

The Veteran's PTSD symptoms, however, do not approach the severity contemplated for the 100 percent rating.  As set forth above, the criteria for a 100 percent rating are met when the Veteran experiences total occupational and social impairment, which is clearly not demonstrated in this case.  There has never been any indication of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, disorientation as to time or place, or memory loss for names of close relative, own occupation or own name. 

The Board notes that the February 2012 VA examiner indicated that the Veteran's level of occupational and social impairment was total.  However, the examiner also assigned a global assessment of functioning score of 50 and noted symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting.  

Although a global assessment of functioning score of 50 is indicative of serious symptoms, it is not indicative of major or total impairment.  As such, the Board finds that the global assessment of functioning score is consistent with the Veteran's PTSD symptoms but not consistent with total functional impairment.      

Hearing Loss

The Veteran's service-connected left ear hearing loss has been evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.87, Diagnostic Codes 6100 for hearing impairment. 

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. 

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87. 

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  See 38 C.F.R. § 4.85. 

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383.  

On VA audiometric examination in June 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000






LEFT
15
10
10
50
60

The pure tone threshold average for the left ear was 33.  Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  

Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both the right and left ears.  Level I hearing in both ears equates to a noncompensable (zero percent) evaluation.  38 C.F.R. § 4.85, Table VII. 

The Veteran underwent VA audiology consult in March 2009.  On VA audiometric examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000






LEFT
10
10
5
45
60

The pure tone threshold average for the left ear was 30.  Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  

Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both the right and left ears.  Level I hearing in both ears equates to a noncompensable (zero percent) evaluation.  38 C.F.R. § 4.85, Table VII. 

Service connection for right ear hearing loss was granted effective August 18, 2010 and combined with the Veteran's service-connected left ear hearing loss as bilateral hearing loss.  As such, the Veteran's actual right ear hearing acuity since August 18, 2010 has been used to determine the correct evaluation for bilateral hearing loss.

On VA audiometric examination in August 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
40
20
LEFT
15
15
25
45
60

The pure tone threshold average for the right ear was 23.8 and for the left ear was 36.3.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear.  

Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both the right and left ears.  Level I hearing in both ears equates to a noncompensable (zero percent) evaluation.  38 C.F.R. § 4.85, Table VII. 

On VA audiometric examination in January 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
25
40
20
LEFT
15
15
20
55
65

The pure tone threshold average for the right ear was 25 and for the left ear was 38.75.  Speech audiometry revealed speech recognition ability of 100 percent in both ears.  

Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both the right and left ears.  Level I hearing in both ears equates to a noncompensable (zero percent) evaluation.  38 C.F.R. § 4.85, Table VII. 

The Board has also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2012).  Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2012).  

In this case, the record demonstrates that the Veteran has not exhibited exceptional patterns of hearing impairment and, therefore, evaluation pursuant to 38 C.F.R. § 4.86 is not authorized. 

The Board notes that the United States Court of Appeals for Veterans Claims  has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  At the June 2008 VA examination, the Veteran reported difficulty understanding speech in quiet, noise, and on the telephone.  At the August 2010 VA examination, the Veteran reported that he has difficulty hearing customers especially on the left side.  At the January 2012 VA examination, the Veteran reported having a difficult time hearing his family talk especially from his left ear and having a difficult time hearing customers at work.  Therefore, the Board finds that the VA examination report is in substantial compliance with the guidelines of Martinak.

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. 

The Board is aware that an extraschedular rating is a component of an increased rating claim.  Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).  If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. § 3.321(b)(1).  In the present case, the Board finds no evidence that the Veteran's service-connected PTSD or hearing loss presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1).  

As explained above, the Veteran's symptomatology is fully contemplated by the pertinent diagnostic criteria.  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.  Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted.  Id. 


ORDER

New and material evidence not having been received, the claim for entitlement service connection for bilateral carpal tunnel syndrome is not reopened.

Entitlement to service connection for a right elbow disability is denied.

Entitlement to service connection for diverticulosis is denied.

For the period May 20, 2008 to February 1, 2010, entitlement to an evaluation of 50 percent, but no higher, is granted for PTSD subject to the law and regulations governing the payment of monetary benefits.

For the period February 2, 2010 to February 7, 2012, entitlement to an evaluation of 70 percent, but no higher, is granted for PTSD subject to the law and regulations governing the payment of monetary benefits.

For the period since February 8, 2012, entitlement to an evaluation in excess of 70 percent for PTSD is denied.

For the period prior to August 18, 2010, entitlement to a compensable evaluation for left ear hearing loss is denied.

For the period since August 18, 2010, entitlement to a compensable evaluation for bilateral hearing loss is denied.


REMAND

The Veteran seeks service connection for erectile dysfunction, a right shoulder disability, and a left shoulder disability.

With respect to erectile dysfunction, a May 2008 private medical record indicates that the Veteran complained of erectile dysfunction and noted that he had been having problems getting and keeping erections since 2004.  The Veteran stated that he thought it was stress.  He was diagnosed as having erectile dysfunction.  

The Veteran underwent VA examination in September 2009 for erectile dysfunction at which time the examiner noted that the Veteran said that he noticed to have erectile dysfunction in 2007 since he started to take his medication for his depression.

A Residual Functional Capacity Questionnaire completed by the Veteran's private treating physician in November 2009 indicates that it is more than likely that the Veteran has medically related erectile dysfunction.

Service connection can be awarded on a secondary basis when a disability is proximately due to or a result of a service-connected disability or when a nonservice-connected disability is aggravated by a service-connected disability.  38 C.F.R. § 3.310 (2012).  The September 2009 examiner opined that the Veteran's erectile dysfunction was less likely caused by the medications Effexor which he was taking for PTSD.  The examiner did not address whether the Veteran's erectile dysfunction was caused by or aggravated by his military service, a service-connected disability, or treatment for a service-connected disability.  Thus, the opinion is inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the Veteran why one will not or cannot be provided). 
   
With respect to a right shoulder disability, the Veteran underwent VA examination in September 2009, at which time the examiner diagnosed status post arthroscopic acromioplasty with degenerative changes of right shoulder in stable condition with minimal loss of function.  The examiner also opined that the right shoulder condition was not caused by or a result of the Veteran's military service because the review of service medical records revealed that he was evaluated by the Medical Board on March 18, 2005, which indicated that his right shoulder condition had resolved.  The Medical Evaluation Board noted that the Veteran's past medical history was significant for several minor injuries due to jumping to include right shoulder but that the Veteran stated that it had since resolved.  

The April 5, 2005, Medical Evaluation Board Proceedings noted right shoulder pain as a medical condition/defect but did not indicate approximate date or origin or whether the condition incurred while entitled to basic pay, existed prior to service, or was permanently aggravated by service.  

The Veteran retired in June 2005, and in March 2007, i.e., less than two years later an arthroscopy of the right shoulder revealed chronic impingement syndrome, severe fibrotic subacromial bursitis, and degenerative labral Buford complex.  In light of these substantial right shoulder diagnoses just a short time after the Veteran's retirement from active duty, an additional medical opinion should be obtained with respect to whether any of his current right shoulder disorders were incurred or aggravated by active duty service.  

With respect to the Veteran's left shoulder, although the September 2009 VA examiner noted left shoulder examination normal and no loss of function, x-rays showed marginal degenerative arthritis.  The examiner opined that the Veteran's left shoulder condition was not caused or a result of his military service because there was no evidence that he was treated for any left shoulder condition while in service.  

This is not the case.  The service treatment records do note complaints, albeit perhaps incorrectly, of left shoulder pain and left shoulder diagnosis (soft tissue injury versus mild rotator cuff).  In light of left shoulder arthritis just a short time after the Veteran's discharge, it is the Board's opinion that an additional medical opinion should be obtained with respect to whether his current left shoulder disorder was incurred or aggravated by active duty service.  

Service connection was denied for right and left feet disorders in a December 2008 rating decision.  In January 2009, the RO received the Veteran's Notice of Disagreement with the December 2008 rating decision.  In March 2009, the RO received a clarification of the issues that the Veteran was appealing, including service connection for right and left foot conditions and noted bilateral foot pain, numbness, tingling, and dragging.  

In a September 2009 letter, VA requested that the Veteran explain the specific disability that he was claiming for right and left foot disabilities and noted that service connection had recently been granted for peripheral neuropathy of the feet.  The Veteran was specifically asked to inform VA if the grant for service connection for peripheral neuropathy of the feet was sufficient.  In response to that letter, the Veteran submitted a Statement in Support of Claim noting that his foot problems were directly attributable to a spine fusion surgery he underwent on active duty.  He also submitted private treatment records including a December 2008 record from Family Foot Care Center indicating that the Veteran reported pain like walking on bone/nerve for 8 years as well as past foot problems of "celulitis ... stitches ... impact wounds."  The Veteran did not indicate that the grant for service connection for peripheral neuropathy of the feet was sufficient.

On February 29, 2012, VA received a request for adjudication of pending appeal from the Veteran.  Specifically, the Veteran requested VA to adjudicate the appeal of the August 31, 2009 rating decision.  That rating decision increased the disability evaluations for both lower extremity peripheral neuropathy and arthritis of both knees.  

In a June 2012 letter, the RO noted that after the August 31, 2009 rating decision was issued, the appellant sent in additional evidence regarding his feet and VA sent him a letter asking him to tell them if he was claiming an additional disability of the feet.  The RO noted that in his September 11, 2009 statement, he gave a history of peripheral neuropathy of the bilateral lower extremities and described the symptoms that he was suffering but that he did not state that he was claiming any other disability of the feet, just the intense pain, tingling, numbness, abnormal sensations, etc.  The RO noted that the Veteran did not state that he disagreed with the VA decision regarding the feet.  The RO noted that on June 11, 2011, the peripheral neuropathy of the right lower extremity was increased to 20 percent and peripheral neuropathy of the left lower extremity was increased to 20 percent.

On July 2, 2012, VA received a Notice of Disagreement with the June 22, 2012 decision.  The Veteran specifically disagreed with VA's decision that he had not timely appealed from any decision on his claim for disability compensation for his bilateral foot neuropathy and that no appeal was currently pending.  The Veteran noted that VA granted the claim on January 29, 2009 and assigned a noncompensable rating for the disorders.  The Veteran noted that immediately thereafter, on March 10, 2009, he filed a Notice of Disagreement on March 10, 2009.  

The RO must issue a Statement of the case with respect to the issue whether a valid notice of disagreement with the rating decision dated August 31, 2009 with respect to the ratings assigned for the right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy has been received.  The Veteran should be provided an opportunity to perfect his appeal as to these issues.  Therefore, the appropriate Board action is to remand the issues to the RO for the issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his erectile dysfunction and any shoulder disorders that is not evidenced by the current record.  If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file.  These records should then be obtained and associated with the claims folder.  The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue.  If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.

2.  The Veteran should be afforded the appropriate VA examination to determine the etiology of his current erectile dysfunction and right and left shoulder disorders.  The claims file and access to Virtual VA must  be made available to and reviewed by the examiner in conjunction with the examination.  The examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  

* The examiner must opine whether it is at least as likely as not that the Veteran's current erectile dysfunction is in any way related (incurred in or aggravated by) his active duty service, by a service-connected disability (posttraumatic stress disorder, degenerative disc disease with spinal fusion at L4, peripheral neuropathy of the lower extremities, arthritis of the knees, tinnitus, bilateral hearing loss), or any medication prescribed for service-connected disability.  

* The examiner must identify all current shoulder disorders and opine whether it is at least as likely as not that such disorder(s) is/are related to the Veteran's active duty service.  

It would be helpful if the examiner would use the following language, as may be appropriate:  "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood).

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner should provide a complete rationale for any opinion provided.

3.  The case should be reviewed on the basis of the additional evidence.  If any benefit sought is not granted in full, the Veteran must be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

4.  The Veteran and his representative must be provided a Statement of the Case as to the issue of whether a valid notice of disagreement with the rating decision dated August 31, 2009 has been received.  The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board.  See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b).  If a timely substantive appeal is not filed, the claim should not be certified to the Board.  If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate.

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).

______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs