Citation Nr: 1313688 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-17 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for service-connected PTSD. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for peripheral neuropathy of the feet, to include as due to exposure to herbicides. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from February 1965 to February 1969 with additional service in the reserves. The issue of entitlement to an increased rating for PTSD came to the Board of Veterans' Appeals (Board) from September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was most recently before the Board in January 2012. The Veteran appealed the Board's January 2012 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated August 2, 2012, the Court vacated and remanded, in part, this matter to the Board for compliance with the instructions included in the Joint Motion for Partial Remand. Regarding the service connection claims for bilateral hearing loss and neuropathy of the feet, and regarding the TDIU claim, these issues came to the Board from July 2008, December 2008 and June 2009 rating decisions of an RO of the VA, respectively. These matters were remanded in January 2012 for further development. In the September 2007 rating decision, the RO granted service connection for PTSD, and assigned a 50 percent disability rating, effective June 2007. The Veteran initiated appeal for the disability rating assigned. In January 2009, the RO assigned a 70 percent disability rating, effective June 2007. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). 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 One of the issues before the Board involves a claim of entitlement to an initial rating in excess of 70 percent for service-connected PTSD. The Joint Motion for Partial Remand noted testimony provided by the Veteran's spouse at the October 2011 hearing before the Board at the RO. She testified to the Veteran's rage and temper, and her belief that the Veteran was not capable of working with the young due to his temper. She also testified that her husband heard voices of dead comrades from Vietnam at night and rarely slept. In keeping with the Joint Motion for Partial Remand, the Board finds a VA examination to appropriate to ascertain the Veteran's present disability level. As for the remaining claims, the Board notes that 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed.Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). As directed by the Board in January 2012, the RO provided the Veteran VA examinations in February 2012. The reports are of record. However, it does not appear that a supplemental statement of case was subsequently issued. Appropriate action in this regard is therefore necessary. Additionally, in the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. In its February 2012 remand, the Board directed the VA examiner to opine whether it is at least as likely as not (a 50% or higher degree of probability) that peripheral neuropathy of the feet is casually related to service, to include presumed in-service herbicide exposure. While the VA examiner discussed service connection based on herbicide exposure, the VA examiner did not discuss direct service connection (separate and apart from the presumed Agent Orange exposure). Accordingly, the case is REMANDED for the following actions: 1. The RO should schedule the Veteran for another VA PTSD examination to ascertain the current severity of his PTSD. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Examination findings should be reported to allow for application of VA rating criteria for PTSD. A Global Assessment of Functioning (GAF) score should also be reported. 2. The claims file should be forwarded to the February 2011 VA examiner for review and an addendum to the examination report indicating whether it is at least as likely as not (a 50% or higher degree of probability) that the peripheral neuropathy of the feet is causally related to service. The examiner should set forth his reasons for such opinion. If the February 2011 VA examiner is unavailable, the Veteran should also be afforded another appropriate VA examination to determine the nature, extent and etiology of peripheral neuropathy of the feet. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that the peripheral neuropathy of the feet is causally related to service? A rationale should be provided. 3. In the interest of avoiding further remand, the RO should review the new opinions to ensure that they are expressly responsive to the posed questions and supported by reasons for the opinions. 4. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues on appeal and determine whether TDIU can be granted. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ ALAN S. PEEVY 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).