Citation Nr: 1310645 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 03-22 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), major depression, and anxiety. 2. Entitlement to an evaluation in excess of 10 percent for hearing loss. 3. Entitlement to an evaluation in excess of 10 percent for right upper arm strain, muscle group V (previously claimed as scar from right arm injury). REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service in the United States Army from August 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The psychiatric claim was remanded in February 2006, March 2007, and May 2009 for evidentiary and remedial development. The case is ripe for appellate review. The Veteran appeared at a Travel Board Hearing in December 2005. A transcript is associated with the claims folder. In June 2010, the Board denied the Veteran's psychiatric claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a February 2012 Memorandum Decision and Order vacated the Board's June 2010 decision and remanded the claim for compliance with the terms of the Order. Here, the Veteran has claimed entitlement to service connection for a psychiatric disability, to include PTSD. In this regard, the Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has characterized the claim as shown above. In an August 2010 Report of Contact, the Veteran indicated that he wished to pursue a claim for a dental condition. This is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 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 In the February 2012 Memorandum Decision, the Court found that the Board erred in denying the Veteran's service connection claim and that the claim should be remanded for further proceedings consistent with its decision. Specifically, the Court found that the Board erred in (i) failing to undertake sufficient efforts to locate treatment records from the Ann Arbor VA Medical Center dated in the 1970s, (ii) failing to provide a VA medical examination in connection with the claim, and (iii) failing to adequately support its negative credibility findings. With respect to the VA treatment records, the Court found that VA should ascertain what the document retention policy may be at the Ann Arbor VA Medical Center and request a search for relevant treatment records dating from 1970, located at the Ann Arbor VA Medical Center, the National Personnel Records Center, or some other off-site storage facility that may be identified. The Court also found that VA should notify the Veteran if records are unable to be obtained. 38 U.S.C.A. § 5103A(b)(2). With respect to a VA examination, the Court found that on August 13, 1966, in the immediate aftermath of a severe beating that the Veteran says he endured outside a restaurant on the outskirts of Ft. Campbell, Kentucky, he received treatment for a severe laceration to his arm. The treatment involved "devitalized tissue" and follow-up treatment three days later for infection of the wound. The Court noted that the Veteran contends he suffered this injury from the hood ornament of a car on which he was pinned during the beating. The Veteran also submitted a statement from his ex-wife detailing his appearance on separation from the Army three days later. Her statement read, in relative part, "Earl had bruising on his arms, legs, chest, and head, his eyes were blood shot, he also had a [nasty] looking wound on his arm." Based in the foregoing, the Court found that the requirements for a VA examination under McLendon v. Nicholson, 20 Vet. App. 79,81 (2006), were met. The Court indicated that, regardless of whether a beating occurred, it was clear that something happened in service to cause wounds and abrasions. The Court also noted that there are multiple references in the medical record to PTSD symptoms and a provisional diagnosis of PTSD. Finally, the Court noted that there are clinical statements linking the Veteran's psychiatric conditions to the in-service beating. These were indicated to be more than sufficient to exceed the low threshold for an examination under McLendon. Based on the foregoing, and consistent with the Court's February 2012 Order, the Board finds that this matter should be remanded, and that upon remand, the appellant should be provided a VA examination in connection with the claim. Here, the Board observes that VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his claimed disability. This should include updated treatment records from VA. In addition, VA should ascertain what the document retention policy may be at the Ann Arbor VA Medical Center and request a search for relevant VA treatment records, dating from 1970, located at the Ann Arbor VA Medical Center, the National Personnel Records Center, or some other off-site storage facility that may be identified. VA should notify the Veteran if records are unable to be obtained. Finally, the Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the 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). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Next, the Board notes that the RO, in an October 2011 decision, increased the evaluation of the Veteran's service-connected hearing loss to 10 percent disabling and continued a 10 percent evaluation for right upper arm strain, muscle group V (previously claimed as scar from right arm injury). In April 2012, the Veteran resubmitted a March 2011 statement requesting reevaluation of his hearing loss and right arm condition. Affording the Veteran the benefit of the doubt, the Board finds that this resubmission should be interpreted as a disagreement with evaluations assigned in the October 2011 rating decision. The RO, however, has not issued to the Veteran a statement of the case with respect to these issues. Inasmuch as the RO has not furnished the appellant a statement of the case that addresses these issues, a remand is warranted. 38 C.F.R. § 20.201, 20.300-301; see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Accordingly, the case is REMANDED for the following action: 1. The RO should furnish the Veteran a statement of the case regarding the issues of entitlement to higher evaluations for hearing loss and right upper arm strain, to include notification of the need, and the appropriate time period, in which to file a substantive appeal to perfect the issue, in accordance with 38 C.F.R. § 19.30. 2. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from VA. In addition, VA should ascertain what the document retention policy may be at the Ann Arbor VA Medical Center and request a search for relevant VA treatment records, dating from 1970, located at the Ann Arbor VA Medical Center, the National Personnel Records Center, or some other off-site storage facility that may be identified. VA should notify the Veteran if records are unable to be obtained. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. Schedule the appellant for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. The claims folder must be provided to the examiner prior to the examination. The examiner should determine the diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. a) The examiner should first determine whether the appellant currently has an acquired psychiatric disorder, to include PTSD, according to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. If PTSD is diagnosed, the examiner should specify any stressor(s) that provide the basis of the diagnosis. b) For any other psychiatric diagnosis, the examiner is requested to render an opinion as to the following: Is it at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed psychiatric disorder is a result of active military service or any incident therein. In this regard, the examiner should comment on the Veteran's report that he was severely beaten outside a restaurant on the outskirts of Ft. Campbell, Kentucky, one week prior to his discharge from service, and received a severe laceration to his arm as a result. The examiner should also comment on a statement from the Veteran's ex-wife detailing his appearance on separation from the Army three days later, which included bruising on his arms, legs, chest, and head. In offering any opinion, the examiner must consider the appellant's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinion with the service treatment records, service personnel records, and post-service diagnoses. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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 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). _________________________________________________ JAMES MARCH 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).