Citation Nr: 1318413 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-37 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for arthritis of the neck, spine, knees, and hands. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to April 1985. He was awarded multiple medals and ribbons, to include the Combat Aircrew Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated on May 7, 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A letter dated on May 9, 2009 along with the rating decision was sent to the Veteran. The statute and regulations provide that a timely notice of disagreement (NOD) must be filed within one year after the date of notice of the RO denial. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. While the Veteran's NOD was received on May 19, 2009, beyond the one year period from the date of the May 2008 rating decision, the RO accepted the NOD as timely. A statement of the case was issued in August 2009 and a timely Form 9 appeal was received in October 2009. As the RO accepted the Veteran's NOD as timely and the Veteran has been led to believe that the issues were on appeal, the Board accepts jurisdiction over these issues. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA can waive objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). The Veteran submitted additional evidence since the last supplemental statement of the case dated in May 2011. In April 2013 the Veteran's representative waived the right to have the additional evidence referred to the RO for review under 38 C.F.R. § 20.1304. In April 2013, the Veteran's representative contended that he is totally disabled due to his psychiatric disorder and arthritis and asserted that after the issues on appeal are adjudicated the issue of a total disability rating based on individual unemployability (TDIU) be addressed. Under certain circumstances, the claim for an increased rating for a service-connected disability includes a claim of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case, the record shows that the Veteran filed a claim for a TDIU in July 2007 and in September 2007 and the RO properly adjudicated this claim in the May 2008 rating decision in which it denied this claim. The Veteran did not appeal the RO denial of his claim for a TDIU. Consequently, the issue of entitlement to a TDIU is not before the Board. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.200 , 20.201, 20.302. However, the Board construes the representative's contention in April 2013 as a new claim for a TDIU. Further, in June 2012, the Veteran raised the issue of service connection for arterial occlusion as secondary to the service-connected diabetes mellitus. The Board does not have jurisdiction over these issues and they are referred to the agency of original jurisdiction for appropriate action. A review of the Virtual VA paperless claims processing system includes the brief that the Veteran's representative filed in April 2013. Other documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The issue of entitlement to an initial rating higher than 10 percent for PTSD and service connection for arthritis of the neck, spine, knees, and hands, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The rating decision in May 2011 granted service connection for diabetes mellitus. CONCLUSION OF LAW There is no question of law or fact involving the claim of entitlement to service connection for diabetes mellitus; the appeal is moot. 38 U.S.C.A. § 7105(d)(5) (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION Review of the claims file indicates that the Veteran perfected an appeal as to the issue of entitlement to service connection for diabetes mellitus in October 2009. Subsequently, however, a May 2011 rating decision granted service connection for diabetes mellitus. Therefore, the Veteran's appeal for entitlement to service connection for diabetes mellitus is moot, as the benefit sought on appeal has already been granted. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Because there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, as it has been granted, the appeal with respect to the issue is dismissed. 38 U.S.C.A. § 7105(d)(5) (West 2002). ORDER The appeal with respect to the issue of entitlement to service connection for diabetes mellitus is dismissed. REMAND In a letter dated in August 2007, the Social Security Administration (SSA) noted that the Veteran claimed that he was disabled due to multiple disabilities, to include arthritis and depression. As the underlying medical records associated with the SSA determination are not in the claims folder and are pertinent to the issues on appeal, an attempt needs to be made to associate the records with the claims folder. The Veteran was last afforded a VA PTSD examination in February 2008. In April 2013, the Veteran's representative asserted that the examination was inadequate as the examiner did not provide an opinion regarding the Veteran's occupational impairment. The representative noted that in May 2009 the Veteran asserted that due to his inability to control his anger and irritability, he lost his partnership in a telecommunication company as well as a powder coating company. He also explained that he could not work as a truck driver because of the medication he was taking for depression. VA is obligated to conduct "'a thorough and contemporaneous medical examination'" when necessary. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Therefore the Veteran should be afforded a VA examination to determine the current level of severity of his PTSD. As for arthritis, the Veteran claims that it is related to his 20 years of service as a helicopter and flight engineer. In May 2009, he contended that his duties in service caused excessive wear and tear on his joints as he had to climb up and down the side of a helicopter and experienced hard landings in helicopters,. He related that his doctor stated that it is more likely that he has arthritis because of excessive wear and stress on his joints due to military service. The Board notes that the Veteran's lay evidence is competent when reporting a contemporaneous diagnosis. Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007). The Veteran's DD 214 shows that he was a helicopter technician for 22 years. In May 2013, his representative submitted an article regarding long term effects of helicopter vibration, which states that helicopter pilots are significantly more prone to experience back pain. The Veteran's service treatment records on multiple occasions show treatment for back and knee problems. A x-ray report in October 1984 shows mild degenerative joint disease of the thoracic spine. The records also show the Veteran complained of tenderness in his right hand. After service, private medical records in October 2008 show arthritis in the neck. A MR in February 2012 shows chronic mid and lower thoracic spondylotic changes secondary to degenerative disc disease. As there is no medical opinion addressing the Veteran's arthritis, a VA examination is necessary to determine the nature and etiology of any arthritis in the neck, spine, knees, and hands. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran's representative in April 2013 requested that the examination be conducted by a flight surgeon. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of all the medical records from the Social Security Administration that were used in considering the Veteran's claim for disability benefits. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA psychiatric examination to determine the current severity and extent of his service-connected PTSD. All tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should assign a GAF score as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), for the Veteran's service-connected PTSD and indicate the impact of his PTSD on occupational and social functioning. A complete rationale for all opinions expressed should be provided. If the examiner is not able to provide an opinion, he or she should explain why. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any arthritis in his neck, thoracic spine, lumbar spine, knees and hands. The examiner must address the following questions: a) Does the Veteran have arthritis in his neck, spine, knees, and hands? In particular is there arthritis of the thoracic spine? b) If the Veteran has arthritis in his neck, spine, knees, and hands, is it at least as likely as not (probability of 50% or greater) that the arthritis is related to his 22 years of service as a helicopter technician? The examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is asked to consider the Veteran's service treatment records, which show treatment for back problems as well as knee pain and right hand tenderness. In February 1966, September 1968, and April 1969 the Veteran was treated for a lumbar spine strain. In September 1968 he was on DNIF (duties not including flying) due to his lumbar spine strain. In June 1976, the Veteran was thrown from a motorcycle and was diagnosed with sprain and contusion to the lumbar area and buttocks. In July 1970 and in December 1973, the Veteran complained of right knee pain. X-rays in April 1977 show no definite evidence of chondromalacia in either patella. There was incomplete fusion of the anterior tibial tubercle of the proximal portion of the left tibia. On the report of medical history in May 1980, the Veteran indicated that he had a "trick" or locked knee. In April 1969 the Veteran appeared to complain of tenderness in the first metacarpal phalangeal joint of the right hand. The examiner must comment on the x-ray report in October 1984 that shows mild degenerative joint disease of the thoracic spine. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 4. Then re-adjudicate the claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. Then, the case should be returned to the Board for further appellate 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs