Citation Nr: 1326269 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-22 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for residuals of a neck and head injury with pain and headaches. 2. Entitlement to service connection for a respiratory disability. 3. Entitlement to service connection for a liver disorder. 4. Entitlement to an initial evaluation in excess of 70 percent disabling for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2002, July 2008, and September 2009 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). A July 2008 RO rating decision denied entitlement to service connection for a neck and head injury with pain and headaches. Subsequently, within the appellate period, additional VA treatment records discussing the Veteran's cervical spine were associated with the claim and in March 2009 the Veteran filed an application to reopen his claim. The denial of service connection was confirmed and continued in a RO rating decision dated in September 2009. The Veteran timely appealed this decision in August 2010. As the additional VA treatment records discussing the Veteran's cervical spine is new and material evidence pertaining to the claim, and was received prior to the expiration of the appellate period for the RO determinations, the July 2008 did not become final. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). As such, the appeal stems from the July 2008 rating decision that denied service connection, which was confirmed in the September 2009 rating decision. 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 The Veteran contends that he injured his head and neck in service when he fell and struck his head on the gears and/or track of an AMTRAC while under fire in the Republic of Vietnam. Service personnel records reveal that the Veteran served as a rifleman and company radioman in the United States Marine Corps and that he served in the Republic of Vietnam. Service personnel records reveal that the Veteran participated in a number of operations while in the Republic of Vietnam. As such, the Board finds that the Veteran participated in combat in the Republic of Vietnam. Pursuant to 38 U.S.C.A. § 1154(b), with respect to combat Veterans, [VA] shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . See also 38 C.F.R. § 3.304(d) (2012). Section 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521 (1996). 38 U.S.C.A. § 1154(b) does not establish service connection for a combat Veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat Veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). As such, the Board finds that the Veteran has competently and credibly reported that he injured his head and/or neck in a fall in service. Post service treatment records reveal that the Veteran has degenerative disc disease of the cervical spine and migraines. The Board notes that the Veteran has not been afforded a VA medical examination regarding whether his residuals of a neck and head injury are proximately due to or permanently aggravated by his service connected knee disabilities. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board finds that the Veteran must be afforded a VA medical examination. Review of the claims file reveals that the Veteran has received consistent care from the VA. Review of the VA treatment records reveals numerous entries that state that records were scanned and that the documents could be viewed with VISTA Imaging. It is unclear whether these records have been associated with the claims file. In addition, the claims file does not reveal VA treatment records dated subsequent to November 2010. As such, on remand, attempts must be made to obtain complete VA treatment records regarding the Veteran, including those records indicated to have been scanned and the records dated subsequent to November 2010. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, the claims file reveals that the Veteran received treatment at Kona Community Hospital and North Hawaii Community Hospital. It is unclear whether the records regarding this treatment have been obtained and associated with the claims file. As such, on remand, attempts must be made to obtain these treatment records. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). A review of the claims file reveals that the Veteran was granted Social Security Administration (SSA) benefits. The claims file also reveals that these records were requested; however, the records regarding this award of benefits have not been associated with the claims folder. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, after acquiring adequate authorization, additional attempts must be made to obtain the Veteran's complete SSA record. In September 2002, the RO granted entitlement to service connection for PTSD and assigned an initial evaluation of 50 percent disabling, effective February 23, 2000; denied entitlement to service connection for a respiratory disability, and denied entitlement to service connection for a liver disorder. In November 2002, the Veteran submitted a notice of disagreement with the initial evaluation assigned his PTSD and with the denials of service connection for a respiratory disability and a liver disorder. The Veteran stated, in part, that "[a] higher rating was denied (70%)", commented on his symptoms and unemployability due to PTSD, and stated "I ask that my percentage of disability be raised." In September 2003, the RO granted entitlement to a 70 percent disabling evaluation for PTSD, effective February 23, 2000. In addition, the RO granted entitlement to a total disability rating based on individual unemployability (TDIU). The RO stated that this represented a complete grant of the benefits sought on appeal and, therefore, the appeal has been withdrawn. Although the Veteran was granted TDIU, the 70 percent disabling evaluation granted for PTSD does not represent the maximum evaluation available for PTSD. The Veteran's statements do not clearly indicate that the Veteran would be satisfied with an evaluation of 70 percent disabling for PTSD. Rather, the Veteran stated that he was denied a higher rating. Therefore, as the 70 percent evaluation does not represent the maximum rating available for PTSD, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). To date the Veteran has not been provide a Statement of the Case regarding the issues of entitlement to an initial evaluation in excess of 70 percent disabling for PTSD, entitlement to service connection for a respiratory disability, and entitlement to service connection for a liver disorder. Therefore, under the circumstances, the Board must remand these issues to the RO for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a Statement of the Case with respect to his claims of entitlement to an initial evaluation in excess of 70 percent disabling for PTSD, entitlement to service connection for a respiratory disability, and entitlement to service connection for a liver disorder, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on these issues. The appellant should be allowed the requisite period of time for a response. 2. Attempt to obtain and associate with the claims file complete VA treatment records regarding the Veteran, including the records that indicate that they have been scanned and are available in VISTA Imaging as well as all treatment records dated subsequent to November 2010. 3. After obtaining adequate authorization, attempt to obtain and associate with the claims file records of the Veteran's treatment from Kona Community Hospital and North Hawaii Community Hospital. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file 4. After obtaining adequate authorization, request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 5. Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any residuals of a neck and head injury in service, including degenerative disc disease of the cervical spine and migraines, found to be present. The claims folder should be made available to and reviewed by the examiner. The examiner should indicate in his/her report whether or not the claims file was reviewed. All indicated studies should be performed, and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any residuals of a neck and head injury in service, including degenerative disc disease of the cervical spine and headaches, are related to or had its onset during service. 6. Thereafter, readjudicate the Veteran's claim of entitlement to service connection for residuals of a neck and head injury with pain and headaches. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). _________________________________________________ MILO H. HAWLEY 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).