Citation Nr: 1317886 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 02-17 560A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial compensable evaluation for residuals of a gunshot wound to the right leg (right leg disability). 2. Entitlement to an initial compensable evaluation for scars of the right arm. 3. Entitlement to service connection for lumbar myositis and lumbar degenerative disc disease (back disorder), to include as secondary to a service-connected right leg disability. 4. Whether new and material evidence has been submitted that is sufficient to reopen a claim for service connection for a psychiatric disorder, to include depressive disorder or posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Y.S. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. The Veteran attended a hearing before RO personnel in March 2005 and before the undersigned in February 2009. Transcripts of these hearings are of record. 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 Psychiatric Disorder In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the Veteran has not received any notice that complies with the requirements of Kent. Remand is necessary so that such notice can be provided. Right Leg Disability and Right Arm Scar The Veteran was last afforded VA examinations for these disabilities in 2004. At his February 2009 hearing, the Veteran contended that these disabilities had become more severe and were interfering with his ability to lead a normal life. A more contemporaneous VA examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the disabilities. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Back Disorder In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. The Veteran was afforded a VA examination for his back disorder in August 2003. The examiner found that the Veteran's back disorder was not related to the service-connected right leg disability since he found no problems with the right leg, but failed to consider whether it was directly related to service. Given the failure to consider direct service connection and the Veteran's contention that his right leg disability has become worse, a remand is required to determine the nature and etiology of the Veteran's back disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Additional VCAA notice must be provided to the Veteran, including a description of why his claim of service connection for a psychiatric disorder was previously denied and what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his back disability , and current severity of his service-connected right arm scars and residuals of a gunshot wound to the right leg. The entire claims file must be made available to the VA examiner. The claims file must be reviewed. The examiner should conduct a complete history and physical and note any pain or functional impairment. The examiner should conduct a complete history and physical and note any limitation of motion, including pain in motion, any involved muscle groups, and any functional impairment in the right leg. The examiner should offer an opinion as to whether any back disability is caused or aggravated by right leg disability, had its onset in service, or is otherwise related to service. If aggravated, specify the baseline of back disability prior to aggravation, and the permanent, measurable increase in back disability resulting from the aggravation by the service-connected right leg disability. All necessary diagnostic testing should be conducted and commented upon by the examiner. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the above action, the claims to reopen the claim for service connection for a psychiatric disorder, for compensable initial ratings for the right leg disability and right arm scar, and for service connection for a back disorder should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ THOMAS J. DANNAHER 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).