Citation Nr: 1314434 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-29 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that in a February 2009 supplemental statement of the case, the RO identified an issue on appeal of entitlement to compensation in excess of 10 percent disabling during a period of incarceration from September 6, 2000 through February 16, 2006. In an October 2000 letter, the RO informed the Veteran that he would be compensated at the 10 percent disability rate for the service-connected PTSD as a result of his incarceration due to a felony conviction. At that time, he was also notified of his right to appeal. In a June 2001 letter (within one year of the October 2000 notification), the Veteran submitted a statement inquiring about the status of his claim and requesting a 100 percent disability rating for service-connected PTSD. The Board does not consider this correspondence a notice of disagreement as to the October 2000 determination. See 38 C.F.R. § 20.201 (2012) (communication expressing dissatisfaction with RO decision and desire to contest the result constitutes a notice of disagreement, and special wording not required); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (stating that VA has always been, and will continue to be, liberal, in determining what constitutes a notice of disagreement). Even in applying a liberal interpretation to the Veteran's letter, it does not initiate the appeals process as the Veteran did not express dissatisfaction with the October 2000 decision. Instead, it appears the Veteran requested an increased rating of the service-connected PTSD. Regardless, even assuming, arguendo, that the June 2001 letter constituted a notice of disagreement, the Veteran did not submit a timely substantive appeal pursuant to the February 2009 and March 2010 supplemental statements of the case. As the issue of compensation in excess of 10 percent disabling during a period of incarceration was not perfected by the Veteran for appellate review, it is not in appellate status and is not before the Board at this time. See 38 U.S.C.A. § 7105(a) (West 2002). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of whether the Veteran is considered competent has been raised by the record (see May 2010 letter from Dr. "R.L." at Bakersfield Memorial Hospital, and May 2011 and November 2012 letters from the Veteran's brother and legal conservator, "C.G."), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In this regard, in the November 2012 letter, C.G. also indicated a tentative interest in pursuing a service connection claim for a cardiovascular disability, to include as due to herbicide exposure, on behalf of the Veteran. Pursuant to the competency determination, the RO should clarify whether the Veteran, or his VA fiduciary, if any, wishes to file a claim for service connection for a cardiovascular disability, to include as due to herbicide exposure. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of an increased rating in excess of 50 percent disabling for service connected PTSD so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran last underwent a VA psychiatric examination in December 2008. The fact that a VA examination is almost five years old is not a valid basis, unto itself, to provide the Veteran with another VA examination of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). However, in May 2010, VA was notified by a physician at Bakersfield Memorial Hospital that the Veteran was hospitalized in December 2009 due to acute myocardial infarction, cardiopulmonary arrest, and subsequent hypoxic encephalopathy. As a result, the Veteran's cognitive functioning was significantly compromised. In his most recent correspondence from November 2012, the Veteran's brother and legal conservator, C.G., indicated that the Veteran is wheelchair bound and has limited cognitive function. C.G. also indicated that the Veteran is unable to carry on a meaningful conversation and has lost the ability to remember remote and recent events in his life. For these reasons, a VA psychiatric medical opinion should be obtained to determine, to the extent possible, the precise psychiatric symptomatology that is related to the service-connected PTSD, as well as to differentiate any cognitive or psychiatric symptoms or disorders that are not due to the service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (stating that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record); see also 38 C.F.R. § 4.14 (both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided). In this case, a VA medical examination is not appropriate considering the Veteran's inability to communicate and his limited understanding. Additionally, there are outstanding private treatment records that have not been obtained and associated with the claims file. As noted, the Veteran was hospitalized in December 2009 at Bakersfield Memorial Hospital due to cardiovascular conditions and subsequent hypoxic encephalopathy, which resulted in limited cognitive functioning. The record contains no indication that the RO attempted to procure any records from Bakersfield Memorial Hospital or any other relevant treatment records since December 2008. The Board notes that all treatment records indicating the severity of the Veteran's PTSD or cognitive ability during the increased rating period are relevant to the Veteran's claim for a higher evaluation for PTSD. Therefore, an attempt should be made to obtain and associate with the claims file all pertinent evidence relating to the evaluation or treatment of the Veteran's PTSD or cognitive functioning, to include the private treatment records from Bakersfield Memorial Hospital. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who provided treatment for PTSD or any other cognitive or psychiatric symptoms. Specifically, request that the Veteran file an appropriate authorization form allowing for the procurement of treatment records from Bakersfield Memorial Hospital or any other identified private provider. When the requested information and any necessary authorizations have been received, attempt to secure copies of all pertinent records which have not already been obtained and associate them with the claims file. 2. After associating any outstanding treatment records with the claims file, if any, request a medical opinion from an appropriate VA psychiatrist to determine the current nature and severity of the Veteran's service-connected PTSD, based solely on the medical evidence of record (a psychiatric examination of the Veteran is not requested). The examiner should report the extent of the Veteran's PTSD in accordance with VA rating criteria. The relevant documents in the claims folder should be made available to the VA examiner for review and he or she should indicate such review in the medical opinion report. The examiner is specifically asked to explain the etiology of the Veteran's cognitive limitations that were suspected to be related to the cardiovascular conditions and subsequent hypoxic encephalopathy beginning in December 2009. To the extent possible, the examiner should distinguish between symptomatology associated with hypoxic encephalopathy versus that associated with service-connected PTSD, and discuss whether and to what each disorder affects the other. In this regard, if the examiner is unable to differentiate between symptomatology attributed to hypoxic encephalopathy and the service-connected PTSD, he or she should so explicitly state. A rationale should be given for all opinions and conclusions rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 3. After undertaking any additional development deemed appropriate, readjudicate the claim on appeal in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. Parker 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).