Citation Nr: 1318503 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-00 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating higher than10 percent for posttraumatic stress disorder (PTSD) for the period February 28, 2007 to July 1, 2008; higher than 30 percent for the period July 2, 2008 to May 8, 2012; and, higher than 50 percent from May 9, 2012, forward. 2. Entitlement to a rating higher than 20 percent for a left (minor) arm sensory defect disability, GSW residuals. 3. Whether there was clear and unmistakable error in a February 1957 rating decision that evaluated residuals of a shell fragment wound of the left arm as 10 percent disabling and osteomyelitis of the left arm as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from May 1950 to February 1956, including combat service in the Korean War. He received the Combat Infantryman Badge and Purple Heart Medal, among other decorations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In pertinent part, the RO awarded an increased rating from 10 to 30 percent for the left arm muscle group injury residuals but continued the existing 20 percent rating for the left arm sensory defect. The rating decision also granted service connection for PTSD and assigned an initial 10 percent evaluation. All actions were effective February 28, 2007. In April 2008 the Veteran submitted a notice of disagreement with regard to the 20 percent rating for left arm sensory deficit. In May 2008, he submitted a notice of disagreement with the initial rating for PTSD. In November 2008, the RO issued a statement of the case that erroneously listed the issues as encompassing the 30 percent rating for the muscle injury associated with the gunshot wound to the left arm, rather than the 20 percent rating for the sensory deficit associated with the gunshot wound. In his substantive appeal, VA Form 9, received in December 2008, the Veteran checked a box indicating that he wanted to appeal all issues listed in the statement of the case; but listing the issues as entitlement to a rating in excess of 20 percent for the sensory deficit and a higher initial rating for PTSD. In June 2010, the RO issued a rating decision finding no CUE in a February 1957 decision that evaluated the muscle injury to the left arm as 30 percent disabling and a noncompensable rating for osteomyelitis of the left arm. Later in June 2010, the Veteran's representative submitted a statement in which he expressed disagreement with these decisions. The Veteran and his wife testified before a Veterans Law Judge at a Board hearing at the RO (Travel Board) in December 2010. Thereafter, the Veteran was informed the VLJ who had conducted the Travel Board hearing was no longer employed at the Board and of his right to a hearing before the VLJ who would decide his appeal. He elected another hearing, which was held via video conference before the undersigned in March 2013. A transcript of the hearing is in the Veteran's Virtual claims file and has been reviewed. At the March 2013 hearing, the Veteran submitted additional evidence under waiver of initial RO review and consideration. In light of the waiver, the Board may consider the evidence without the necessity of a remand. See 38 C.F.R. § 20.1304 (2012). Although the Veteran indicated at the hearing, at times, that he was not "claiming anything" for his right arm, the evidence of record reflects he has consistently reported his right arm is disabled secondary to overuse due the extent of the service-connected left arm disability. The February 2013 medical report of his private physician, which was submitted at the hearing, clearly suggests a causal linkage between the two. Hence, the issue of entitlement to service connection for right arm disability as secondary to the service-connected left arm disability has been raised by the record, 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. The Veteran also made reference at the hearing to a rating of his service-connected bilateral hearing loss he may have received in 2011 or 2012. The Board notes an October 2012 rating decision awarded an increased rating from 40 to 50 percent, effective in June 2012. The Board does not deem the Veteran's references sufficiently definite to have constituted a notice of disagreement with the October 2012 rating decision. See 38 C.F.R. § 20.201 (2012). Hence, the Board hereby advises the Veteran and his representative that the appeal period for the October 2012 rating decision has not expired. See 38 C.F.R. § 20.302 (2012). The Veteran's wife testified that one of the Veteran's evaluations either was reduced to 10 percent, or reduced by 10 percent. The Board has reviewed the rating decisions in the claims file, and none of them reflects a reduction in any of the Veteran's evaluations. Hence, there is no basis for a referral to the AOJ. As earlier indicated, the Veteran has a Virtual claims file, which is a highly secured VA repository, associated with his appeal. The Board has reviewed the documents in the Virtual file and, with the exception of the transcript of the video conference testimony; the documents therein are duplicative of the documents in the paper file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Veteran's representative has submitted a timely notice of disagreement with the June 2010 rating decision that found no CUE in the 1957 rating decisions regarding muscle injury and osteomyelitis; a statement of the case has not yet been issued. The Board is required to remand the appeal for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). In March 2012, the AMC issued a supplemental statement of the case with regard to rating for the left arm sensory deficit. In no case will a supplemental statement of the case be used to announce decisions on issues not previously addressed in a statement of the case. 38 C.F.R. § 19.31(a) (2012). Because this issue was not previously the subject of a statement of the case, a statement of the case is required. The Veteran has already filed an out of order substantive appeal that would be sufficient to perfect the appeal once a statement of the case is issued. Archbold v. Brown, 9 Vet. App. 124 (1996). In January 2011, the Board remanded the case for additional development, to include VA examinations, following the December 2010 Board hearing. The AMC completed the additional development as directed, including the award of increased ratings as noted in the Introduction. The Board's review of the paper and Virtual claims files, however, reveals no supplemental statement of the case (SSOC) related to the initial rating of the Veteran's PTSD. Both the March 2012 (mailed in June 2012) SSOC in the paper file, and the May 2012 SSOC in the Virtual file, relate to the Veteran's left arm disability. The SSOCs are virtually identical. Thus, the case must be remanded for issuance of an SSOC after completion of the development directed below. See 38 C.F.R. § 19.31(b) (2012). The Veteran and his wife testified that the February 2013 private medical report is evidence that his left arm disability has worsened in severity. Their testimony also suggests worsening PTSD symptoms. The veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The September 2004 VA bones and March 2008 examination reports note the Veteran had undergone bilateral rotator cuff surgeries. (Emphasis added). Subsequent examination reports, however, note that only the right rotator cuff was status post-operative. The March 2008 examiner opined the Veteran's left arm symptoms were due to the rotator cuff tear. Documentation in the claims file notes the Veteran was admitted to a VA facility for a shoulder tear in April 1987 and a rotator cuff tear in July 1989. Unfortunately, the affected extremity was not noted. VA has a duty to seek the records of this treatment because they may be relevant to the left shoulder rating. 38 C.F.R. § 3.159(c) Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The agency of original jurisdiction (AOJ) should obtain records of records of the April 21, 1987, admission for a shoulder tear at the VAMC, West Haven, Connecticut. 2. The should obtain records of the Veteran's July 23, 1989, admission for a rotator cuff tear at the VAMC, Huntington, WV. 3. Efforts to obtain the VA records should continue until they are obtained, unless it is reasonably certain that the records do not exist or that further efforts would be futile. If any requested records cannot be obtained, inform the Veteran of the missing records, of the efforts mad to obtain the records, and of any further actions that will be taken with regard to his claim. 4. After the above is complete, the Veteran should be afforded a VA examination to evaluate the sensory deficit in his left arm as a residual of the gunshot wound. The claims file must be provided for review by the examiners as part of the examination. The examiner should indicate the nerves involved and the severity of any associated neuritis, neuralgia or nerve paralysis. 5. Advise the Veteran that it is his responsibility to report for the VA examination, to cooperate in the development of the claim, and that, in accordance with 38 C.F.R. §§ 3.158, 3.655, the consequences for failure to report for a VA examination without good cause include denial of the claim. In the event he does not report for the left arm examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. The Veteran should be afforded a new VA examination to evaluate the severity of his PTSD. The claims file must be provided for review by the examiners as part of the examination. 7. The AOJ should issue a statement of the case with regard to the issues of entitlement to an increased rating for left arm sensory defect as a gunshot wound residual; and whether there was CUE in a February 1957 rating decision that evaluated the muscle injury resulting from a gunshot wound as 30 percent disabling, and evaluated osteomyelitis as noncompensable. The CUE issues should not be certified to the Board unless the Veteran or his representative submits a sufficient substantive appeal. 8. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental SOC. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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. 2010). _________________________________________________ Mark D. Hindin 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) (2010).