Citation Nr: 1320491 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 05-32 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a cervical spine disorder (claimed as degenerative disc disease of the cervical spine, status post neck surgery). 2. Entitlement to service connection for a lumbar spine disorder, to include as due to cervical spine disorder (claimed as degenerative disc disease of the lumbar spine). 3. Entitlement to an initial increased evaluation for posttraumatic stress disorder (PTSD) with major depressive disorder. 4. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to December 1970. These matters came to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2004 rating decision, the RO declined to reopen the claims of service connection for lumbar and cervical spine disorders. In an October 2011 decision, the Board reopened the claims of service connection for lumbar and cervical spine disorders and remanded the issues for further development. In May 2011, the Veteran testified at a Board hearing regarding the lumbar and cervical spine issues; the transcript is of record. In an October 2010 rating decision, the RO granted entitlement to service connection for PTSD with major depressive disorder, assigning a 30 percent disability rating, effective November 15, 2005. The Veteran, in his May 2011 hearing testimony, expressed the belief that his symptomatology warranted a higher evaluation. The Board construed these statements as a notice of disagreement with the initially assigned evaluation for his psychiatric disability. A rating decision and statement of the case was issued in February 2012. The RO assigned a 70 percent disability rating, effective May 5, 2010, and assigned a 30 percent disability rating, effective May 26, 2011. A statement received from the Veteran in March 2012 is construed as a substantive appeal. In a January 2013 rating decision, the RO assigned a 50 percent disability rating, effective March 7, 2012. With regard to the TDIU claim, the Board acknowledges that the Veteran did not appeal the August 2012 RO denial of that issue. The Board has jurisdiction over the issue of TDIU, however, because it is part of the claim for increased compensation. Thus, the TDIU claim is added to the Veteran's appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 Lumbar and cervical spine disorders In several written statements, as well as lay testimony before the undersigned in the May 2011 hearing, the Veteran indicated that he was involved in a jeep accident during military service in the Republic of Vietnam. The front tire of the jeep blew up and the Veteran, as a passenger, jumped from the vehicle, which landed on the driver. The Veteran helped lift the jeep off the driver and then ran to a nearby camp for help. He was informed by the time he arrived that the military police were already aware of the incident; they sent him back to his unit, at which time the unit commander had him fill out an accident report and seek medical treatment for a cut on his arm. In statements, the Veteran had indicated that the incident occurred in June or July 1970, or alternatively June or July 1969. In the October 2011 Board Remand, it was instructed that an attempt should be made to obtain the Veteran's unit records through official sources and verify whether he was involved in a jeep accident in 1969 or 1970 while in the Republic of Vietnam. In a December 2011 telephone conversation with a VA official, the Veteran indicated that the incident occurred in June or July 1969. In December 2011, the RO requested the Veteran's unit history and other pertinent records from the Joint Services Records Research Center (JSRRC) pertaining to an incident that occurred in June or July 1969. JSRRC responded that while unit records submitted by the unit for the time period of the stressor - June 1 to July 31, 1969 - were not maintained, review of the Daily Staff Journals by the 101st Airborne Division and the Serious Incident Reports submitted by the 18th Military Police Brigade was conducted. Neither of these records documented the stressor. The available casualty information did not list the Veteran or another named soldier (SP5W.) as injured during the stated time period. It was also indicated that they do not maintain the MR's submitted by the 5th Transportation Battalion for the time period and VA should request a research of the unit's MR's. In April 2013, the Veteran submitted a statement indicating that he now recalls that the jeep incident occurred on December 25, 1969, the same day that Bob Hope visited the base. He stated that the incident occurred on the road from Phu Bai to Camp Eagle. The Board notes that internet searches verify that Bob Hope did visit the Republic of Vietnam on Christmas Day in 1969. In light of the Veteran's recent assertions, further attempts should be made to obtain the unit records, or to corroborate the claimed incident. The Veteran should also be afforded a VA examination regarding his cervical and lumbar spine disorders. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Initial increased evaluations for PTSD The medical evidence of record reflects that the Veteran seeks mental health treatment at the Providence VA Medical Center (VAMC) and that he also seeks mental health treatment at the Hyannis, Massachusetts Vet Center. While the evidence of record contains correspondence dated from various providers at the Hyannis Vet Center, there are no treatment records from this provider. The Board notes specifically that while a Hyannis Vet Center social worker, B.M., submitted August 2008 and August 2010 correspondence pertaining to the Veteran, there are no records for the periods in between. In the August 2010 correspondence, B.M. stated that the Veteran's PTSD related symptoms had become worse over the past two years but there were no specific details or support provided. The entirety of the Veteran's treatment records should be obtained from the Hyannis Vet Center. The Board also notes that for the period August 2008 to April 2010, while the Veteran was seeking treatment at the Providence VAMC for other maladies, no mental health treatment is reflected in the VA outpatient treatment records of record until he was hospitalized on May 5, 2010. Any mental health treatment records or evaluations dated from August 1, 2008, to May 4, 2010 should be associated with the claims folder. Also, it does not appear that VA treatment records have been associated with the record since 2010. Updated treatment records should be obtained for the period from October 8, 2010. 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). On May 5, 2010, the evidence of record reflects that the Veteran was hospitalized at the Boston (Brockton) VAMC due to an attempted suicide. Prior to being admitted to the Boston VAMC, he was taken to the Cape Cod Hospital. An attempt should be made to obtain the Veteran's treatment records dated in May 2010 from the Cape Cod Hospital. 38 C.F.R. § 3.159(c)(1) (2012). In March 2013, the Veteran underwent a VA mental health evaluation. The examiner checked the box indicating 'occupational and social impairment with reduced reliability and productivity' and noted that he had been placed on SSDI for a spinal injury approximately five years prior, but did not provide further comment as to his ability to maintain gainful employment due to his service-connected PTSD. Thus, the Veteran should be afforded another VA examination to assess the severity of his PTSD. TDIU The Veteran's claim of entitlement to a TDIU is inextricably intertwined with the issues being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following actions: 1. Associate treatment records from the Providence VAMC for the periods August 1, 2008, to May 4, 2010, and from October 8, 2010. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. After obtaining an appropriate release from the Veteran, request the entirety of his treatment records from the Hyannis Vet Center. If such efforts prove unsuccessful, please notify the Veteran and documentation to that effect should be added to the claims folder. 3. After obtaining an appropriate release from the Veteran, request his treatment records from the Cape Cod Hospital from May 2010. If such efforts prove unsuccessful, please notify the Veteran and documentation to that effect should be added to the claims folder. 4. Request that the JSRRC or any other appropriate repository research the Veteran's unit records, Daily Staff Reports, Serious Incident Reports, or Morning Reports to verify whether the Veteran was involved in a jeep accident between December 1, 1969 to December 31, 1969, and specifically on December 25, 1969. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 5. Thereafter, schedule the Veteran for a VA orthopedic examination with a physician with appropriate expertise to determine whether his claimed lumbar and cervical spine disorders are related to military service. The claims file must be made available to and be reviewed by examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted and the results reported in detail. The examiner should respond to the following: a) Please identify all disabilities associated with the lumbar and cervical spine; b) Is it at least as likely as not (a 50% or higher degree of probability) that a lumbar spine disability had its clinical onset during the Veteran's period of active service, or is otherwise related to his period of active service, to include injuring his back in a jeep accident in the Republic of Vietnam; c) Is it at least as likely as not (a 50% or higher degree of probability) that a cervical spine disability had its clinical onset during the Veteran's period of active service, or is otherwise related to his period of active service, to include injuring his neck in a jeep accident in the Republic of Vietnam. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, and lay statements of the Veteran. If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. The examiner is instructed, for the purpose of the examination, to assume that the Veteran was indeed involved in a jeep accident as he claims- the credibility of such statements are a question for the Board to address at the time a final decision is rendered. 6. After obtaining all outstanding treatment records, schedule the Veteran for an appropriate VA examination to determine the current severity of his PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should be asked to comment on the severity of the Veteran's PTSD, and specify the degree of occupational or social impairment due to his service-connected PTSD. Examination findings should be reported to allow for evaluation of PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the examiner should specifically comment on any difficulty establishing and maintaining effective work and social relationships due to his PTSD. A GAF score and an analysis of its meaning should be provided. 7. After completion of the above, review the expanded record and readjudicate the claims of service connection for lumbar spine and cervical spine disabilities and entitlement to initial evaluations for PTSD, and adjudicate his claim for a TDIU. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).