Citation Nr: 1312673 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-25 522 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to compensation, pursuant 38 U.S.C.A. § 1151, for a left elbow disability resulting from multiple VA surgeries. 2. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right ankle. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include as secondary to service-connected disability(ies). 5. Entitlement to a temporary total disability rating for left elbow surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran had active duty from July 1973 to June 1975. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision in which the RO, inter alia, denied claims for a rating in excess of 20 percent for a right ankle disability, service connection for PTSD as well as an acquired psychiatric disorder other than PTSD, to include as secondary to service-connected disabilities, compensation under 38 U.S.C.A. § 1151 for a left elbow disorder, and a temporary total disability rating for a left elbow disorder. In April 2008, the Veteran filed a notice of disagreement (NOD). In a February 2010 rating decision, the RO readjudicated the claim for section 1151 compensation for the left elbow, but again denied the claim. In May 2010, the RO issued a statement of the case (SOC), and in May 2010 the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). In December 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. During the Board hearing, the Veteran withdrew from appeal a claim for a rating in excess of 10 percent for a scar (for which an appeal had also been perfected). Also during hearing, the undersigned granted a 30-day abeyance period for the submission of additional evidence. In January 2013, the Veteran submitted additional evidence, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012) Regarding characterization of the appeal, the Board points out that the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran has been diagnosed with PTSD, depression, mild brain injuries, acute stress disorder, chronic pain disorder, and an anxiety disorder. He has claimed PTSD as directly related to service. He also claims that he has acquired psychiatric disorders other than PTSD directly related to service or, alternatively, as secondary to service-connected disabilities. Accordingly, the Board has characterized that portion of the appeal pertaining to psychiatric disability as encompassing the 3rd and 4th issues set forth on the title page. In addition to the Veteran's paper claims file there exists an electronic claims file in Virtual VA. A review of the Veteran's virtual file contains documents that are either duplicative of those in the paper file, or are not relevant to the claims on appeal. The Board's decision on the claim for compensation, pursuant to 38 C.F.R. § 1151, for the left elbow is set forth below. The remaining claims on appeal are addressed in the remand following the order; these matters are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that, during the pendency of this appeal, the Veteran raised the matter of service connection for a left elbow disorder in May 2009; he also asserted such a claim during his December 2012 Board hearing. Although, as noted, a claim for compensation under 38 U.S.C.A. § 1151 for a left elbow disability is currently on appeal, the Court has held that a claim under § 1151 is not a claim for service connection. See Anderson v. Principi, 18 Vet. App. 371 (2004). Therefore, the Veteran's newly-advanced claim for service connection is separate and distinct from the claim for compensation under § 1151, and, although both claims involve the same disability, they are not inextricably intertwined, as asserted. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue).As the RO has not adjudicated a claim for service connection for a left elbow disability, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran incurred left elbow pain syndrome due to neuritis as a result of a series of VA surgeries on his left elbow. 3. Additional left elbow disability is not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and is not the result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation. pursuant to the provisions of 38 U.S.C.A. § 1151 for a left elbow disorder resulting from multiple VA surgeries are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (here, the RO). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection or §1151 claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in January 2008, prior to the issuance of the initial RO decision in April 2008. The letter informed him of what evidence was required to substantiate his claim for compensation under 38 U.S.C.A. § 1151 and of his and VA's respective duties for obtaining evidence. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished. First, the RO obtained VA treatment records. In this regard, the Board notes that the Veteran identified VA treatment at the Milwaukee, Wisconsin VA Medical Center. Treatment records were requested and obtained by VA. Next, a specific medical examination pertinent to the issue decided herein was obtained in February 2010. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to the claim. Next, the Veteran was afforded the opportunity to testify before the Board in December 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned essentially elicited testimony necessary to determine the nature of the Veteran's claim under 38 U.S.C.A. § 1151. T. pages 6-7. The undersigned also explained that to the extent the Veteran was claiming service connection for a left elbow disorder, such had not yet been adjudicated by the RO. The Board acknowledges that the precise elements of the Section 1151 claim were not enumerated during the hearing. However, the undersigned held the record open for an additional 30 days in order for the Veteran to submit additional evidence in support of his claims on appeal. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), and have not identified any prejudice in the conduct of the Board hearing. Moreover, the Veteran has demonstrated through his written statements that he understands the elements necessary to support a claim for compensation under 38 U.S.C.A. § 1151. See Veteran's August 2009 statement. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) are met, and that the Board hearing is legally sufficient. To the extent that there were any error(s) or omission(s) with regard to the explanation of the issue on appeal, it was not prejudicial. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim herein decided that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis In the present case, the Veteran has asserted that, as a result of multiple surgeries on his left elbow the VA Medical Center in Milwaukee, Wisconsin , beginning in 1996, he has additional left elbow disability-specifically, numbness, tingling, weakness, and severe pain from his left hand to his left elbow. See Veteran's August 2009 statement. As such, he asserts his entitlement to compensation, under the provisions of 38 U.S.C.A. § 1151, for post-operative residuals affecting the left elbow and forearm. Section 1151 of Title 38 of the United States Code was modified by section 422(a) of Public Law 104-204, 110 Stat. 2926 (1996), for all claims filed on or after October 1, 1997, to require not only that the VA treatment in question resulted in additional disability, but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). To determine whether the Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran's condition after such care, treatment, or examination has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2012). For claims received on or after October 1, 1997, as in the instant case, the claimant must establish actual causation. To meet causation requirements based on additional disability, the evidence must show that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused the additional disability, or that the proximate cause of the additional disability or death was an event that was not reasonably foreseeable. With regard to the former element, it must be shown that VA's care, treatment, or examination caused the Veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such VA's care, treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(c), (d) (2012). VA amended the regulations governing claims under 38 U.S.C.A. § 1151 set out above, effective September 2, 2004. 69 Fed. Reg. 46,426 (Aug. 3, 2004) (codified at 38 C.F.R. §§ 3.154, 3.358, 3.361, 3.362, 3.363 (2005)). The effect of the changes was to make VA regulations consistent with the changes previously made to 38 U.S.C.A. § 1151, of which the Veteran was clearly advised in the January 2008 letter. As noted above, the Veteran contends that he has an additional disability in his left elbow due to multiple surgeries performed by VA. He has indicated that, prior to the initial VA surgery in 1996, he had numbness and tingling in all of the fingers of his left hand along with weakened grip strength and mild tenderness in his left elbow. Afterwards, he had relief from the numbness, tingling, and pain for approximately nine years. Then, the symptoms of numbness, tingling, weakness in the left hand returned, along with significant pain that had increased in severity to an 8 out of 10 and was described as "shock-like" with radiation into the upper arm. The Veteran underwent a second VA-surgery in 2006, which relocated the ulnar nerve into the soft tissue of the upper arm. The Veteran had some benefit of improved grip strength that was short-lived. It quickly deteriorated with pain getting worse very quickly. An EMG was done and showed ulnar entrapment. In October 2007, the Veteran underwent another VA-surgery to reverse the 2006 surgery. Since the October 2007 surgery, the Veteran reports that he has experienced residual numbness, tingling, and weakness in his left hand with severe pain continuing in his elbow, which averages 8 out of 10 in severity. He also reported that he takes prescription pain medication which reduces the pain to 5 out of 10. See February 2010 VA examination report. First, the Board finds that the Veteran suffered an additional disability of pain syndrome due to neuritis, as a result of VA treatment. In this regard, the February 2010 VA examiner opined that it is as likely as not that the Veteran's pain syndrome due to neuritis became worse as a result of the series of surgical treatments at the Milwaukee VAMC. However, the examiner opined that it was less likely than not that the tingling and numbness in the left hand was caused by or became worse as a result of the surgical treatment. In other words, tingling and numbness was not identified as an additional disability but as symptoms presumably associated the pain syndrome due to neuritis that has been diagnosed as an additional disability. The examiner based his opinion on the Veteran's report that the tingling and numbness symptoms actually improved for several years following the initial surgery in 1996. Based on the evidence of record, the Board finds that, the Veteran has an additional disability of pain syndrome due to neuritis in the left upper extremity as a result of surgeries at the Milwaukee VAMC. Thus, the question remains whether the additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or was the result of an event that was not reasonably foreseeable. The Board finds that the competent, probative evidence does not support a finding of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or was the result of an event that was not reasonably foreseeable. Specifically, the February 2010 VA examiner opined that there was no additional disability that resulted from carelessness, negligence, lack of proper skill, or error in judgment, or fault in the surgical team that performed the procedures on the Veteran. The examiner explained that the potential for paradoxical worsening of pain is one of the potential complications of surgical manipulations of peripheral nerves and is not specifically an indication of fault on the part of the attending personnel involved with the surgeries. Significantly, there is no competent opinion to the contrary. The Board observes that a September 2007 informed consent for left elbow surgery is of record. Although the informed consents for the other left elbow surgeries are not included in the claims file, the Board observes that, the Veteran has not claimed that the surgeries were performed without his consent. The Board notes that informed consent includes the nature of the procedure, expected benefits, reasonably foreseeable risks, reasonable alternatives, and anticipated results if nothing is done. As noted above, the February 2010 VA examiner has opined that the Veteran's pain syndrome is one of the potential complications of surgical manipulations of peripheral nerves. The Board again notes that the governing legal authority provides that it must be shown that VA's care, treatment, or examination caused the Veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such care, treatment, or examination without the Veteran's informed consent. Despite a finding of an additional disability, there is no evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Likewise, the evidence does not support a finding that the treatment was furnished without the Veteran's informed consent and the Veteran does not contend otherwise. In reaching its conclusion, the Board has considered the Veteran's statements that his increased neuritis pain in the left elbow is a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or was the result of an event that was not reasonably foreseeable. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the Veteran is competent to report his observations of symptoms before and after surgery because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to determine that his symptoms are worse due to negligence or similar fault on the part of the medical personnel involved in his surgical treatment. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as to the specific issue in this case-a determination of whether additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or was the result of an event that was not reasonably foreseeable-falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Finally, while the Veteran's statements regarding the increase in severity of his neuritis pain following surgery may support a finding of an additional disability due to VA treatment, they do not support a finding of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or that the Veteran's increased pain was the result of an event that was not reasonably foreseeable. In light of the foregoing, the Board concludes that the criteria for compensation under 38 U.S.C.A. § 1151 for left elbow disability resulting from multiple VA surgeries are not met, and that the claim must be denied. . In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (2012). surgeries. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable and the claim must be denied. ORDER The claim for compensation, pursuant to the provisions of 38 U.S.C.A. § 1151 for a left elbow disorder resulting from multiple VA surgeries is denied. REMAND The Board's review of the claims file reveals that further RO action on the claims remaining on appeal is warranted. Regarding the claims for service connection for PTSD and other acquired psychiatric disorders, the Veteran underwent a VA psychiatric examination in November 2007. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In November 2007, the VA examiner diagnosed PTSD, among others, and opined that PTSD was not related to a head injury in service. The examiner noted that the Veteran's PTSD symptoms began while he was in the hospital in February 2007, when he "witnessed" (through the wall) the death of another patient in the hospital. The Veteran reported that since that time, he has recurrent memories of his head injury in service. The examiner enumerated the PTSD criteria and determined that the Veteran met the criteria for PTSD and had mild PTSD. The examiner opined that the Veteran's PTSD could be described as delayed onset triggered by the experience of witnessing death in the hospital but the examiner concluded that the support for the argument was not very strong. Ultimately, however, the examiner concluded that the Veteran's PTSD was not related to the head injury in service. The examiner did not explain the basis for his opinion. As the examiner initially indicated that the Veteran's PTSD could be related to service, the examiner had an obligation to fully explain why he ultimately determined that PTSD was not related to service. The Board finds that the opinion is inadequate and a new VA examination and opinion are required. Additionally, the Veteran claims that he has an acquired psychiatric disorder other than PTSD that was caused or is aggravated by his service-connected disabilities. Pursuant to 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation has been interpreted to permit service connection not only for a disability caused by a service-connected disability, but also for disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. In this case, no medical examination and/or opinion has been obtained to address whether any acquired psychiatric disorder other than PTSD is related to his service-connected disabilities. During the December 2012 hearing, the Veteran indicated his willingness to report to a VA examination, if needed. Regarding the claim for a rating in excess of 20 percent for a right ankle disability, the Veteran has indicated that his disability has worsened since the last VA examination in January 2008. Specifically, at his hearing before the Board, he reported that his ankle disability had worsened since the last rating decision, which was in April 2008. T. page 3. Notably, his last comprehensive VA examination occurred prior to that rating decision, in January 2008. He reported that since the last rating decision, he has had to use a brace because his ankle is loose and unstable without the brace. T. pages 3-4. He reported that he wears the brace constantly to prevent further injury to his ankle. T. page 4. He also reported right ankle swelling and pain that reaches a 7 or 8 out of 10 when he does not use the brace. Id. He reported that his pain level is reduced to a 4 or 5 out of 10 with use of the brace. T. page 5. The Board observes that in January 2013, the Veteran submitted a December 2012 VA disability benefits questionnaire (DBQ) regarding the right ankle. However, the December 2012 DBQ was incomplete. The December 2012 VA physician did not complete the sections regarding right ankle range of motion findings, repetitive testing, muscle strength testing, ankylosis, flare-ups, or the section regarding the affect of the Veteran's disability on his employment. The DBQ also did not reflect the same complaints regarding swelling that the Veteran reported at the December 2012 hearing. As higher schedular ratings for ankle disabilities are only available for ankylosis in plantar flexion or dorsiflexion, the December 2012 VA examination report is inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the December 2012 VA examination report is inadequate and the Veteran has reported worsening symptoms since the January 2008 VA examination, another examination is required. On Remand, the examiner should also address any muscle injuries associated with the right ankle disability. During the December 2012 hearing, the Veteran indicated his willingness to report to a VA examination, if needed. In light of all the above, the Board finds that further mental disorders and joints examinations and opinions are needed to resolve the claims remaining on appeal. Hence, the RO should arrange for the Veteran to undergo such examinations at a VA medical facility. The Veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s) (as the original claim and/or the claim emanating from an original claim for, and award of, service connection) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate wi6h the claims file all outstanding, pertinent records. give the Veteran another opportunity to provide information and/or evidence The Board points out that, during his Board hearing, the Veteran specifically noted that has been treated at the VA Medical Centers in Madison, Wisconsin and Rockford, Illinois. Notably, the Rockford, Illinois clinic is part of the Madison VA Medical Center system. A review of the claims file reveals that records from Madison VAMC dated up to November 2007, and from February 2012 to December 2012, are of record. Therefore, the RO should obtain any outstanding, pertinent treatment records from the VAMC system in Madison, Wisconsin. The RO should also afford the Veteran opportunity to provide information and/or evidence pertinent to the claims remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding private medical records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. As indicated, the RO's adjudication of all of the claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. The RO's adjudication of the claim for higher rating should include consideration alternative diagnostic codes for evaluating the Veteran's right ankle disability, as well as whether "staged" rating of the disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007) is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Madison VAMC system all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the procedures set forth in 38 C.F.R. § 3.159 (2012). If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received have been associated with the claims file, the RO should arrange for the Veteran to undergo VA mental disorders and joint examinations, by a psychiatrist or psychologist and an appropriate physician, respectively, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND must be made available to each individual designated to examine the Veteran, and each examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. Each examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. Mental Disorders Examination - With respect to diagnosed PTSD, the examiner should provide an opinion, 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) the disability is the result of the February 2007 in-service incident in which the Veteran "witnessed" (through the wall) the death of another patient in the hospital. If a diagnosis of service-related PTSD (associated with the hospital incident) is appropriate, the examiner should clearly explain how the diagnostic criteria are met, as well as comment upon the link (if any) between the identified in-service incident and the Veteran's symptoms The examiner should also clearly identify all psychiatric disability(ies) other than PTSD. Then with respect to each such diagnosed disability, the examiner should opine whether it is at least as likely as not that such disability was caused or is aggravated by service-connected disability(ies). If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. Right ankle examination: All pertinent pathology associated with the Veteran's right ankle should be annotated in the examination report. The examiner should elicit information from the Veteran as to the frequency, duration, and severity of associated symptomatology. The examiner should also discuss the extent of any loss of function in daily activities, including work and physical activity. The examiner should accomplish range-of-motion testing of the right ankle, and comment on the degree of disability due to functional loss resulting from pain, flare-ups, weakness, fatigability, etc. The point at which pain begins during motion should be noted. All functional losses must be equated to additional loss in range of motion beyond what is shown clinically. The examiner should specifically note whether ankylosis is present in plantar flexion or dorsiflexion, and at what degree. If any muscle injury is noted to be associated with the right ankle disability, the muscle group should be identified and the degree of severity (i.e., slight, moderate, moderately severe or severe) should be noted. 5. If the Veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the remaining claims on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, the furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs