Citation Nr: 1329187 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-36 797A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension to include as secondary to a service-connected disability. 3. Entitlement to service connection for transient ischemic attacks (TIAs) to include as secondary to a service- connected disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The Veteran served on active duty with the United States Marine Corps from July 1966 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 and March 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The July 2006 rating decision in pertinent part denied service connection for hypertension and TIAs. In the March 2007 rating decision, the RO granted service connection for PTSD at a 30 percent evaluation, effective October 31, 2005; the Veteran contends a yet higher initial evaluation is warranted. In September 2008, the RO granted an increased initial 50 percent rating for PTSD for the entirety of the appeal period. The Veteran has indicated this did not represent a full grant of the benefit sought, and hence the issue remains on appeal. The Veteran provided testimony before the undersigned Acting Veterans Law Judge at personal hearing held at the Board's Washington, DC, offices in November 2012. A transcript from this hearing is of record. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). At his November 2012 hearing, the Veteran testified that he was unable to maintain employment as a result of his service-connected PTSD and his service-connected physical disabilities. The issue is considered on appeal as part of the claim for increased rating for PTSD. 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 Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claims for an initial rating in excess of 50 percent for PTSD, service connection for hypertension as secondary to a service-connected disability, service connection for TIAs as secondary to a service-connected disability and entitlement to a TDIU. Relevant to all claims are updated VA treatment records; the Veteran indicated at the Board hearing that he continues to receive treatment. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran did not identify ongoing private treatment. PTSD The Veteran most recently underwent a VA PTSD examination in December 2009. At his November 2012 hearing, the Veteran testified that his PTSD symptoms had increased in severity since his last examination, and he provided specific examples of worsening. Where the Veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected PTSD disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See 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"). Service Connection There are multiple opinions regarding the etiology of the Veteran's current hypertension and TIA disabilities. However, that development has focused on the role of PTSD in causing or aggravating the cardiovascular and cerebrovascular conditions. At the November 2012 hearing, the Veteran and his representative requested that the alternative theory of a secondary relationship to other service-connected disabilities be explored, in particular diabetes mellitus. The Board agrees that such development is necessary. Medical opinions of record either fail to offer an adequate rationale for stated opinions, address solely the possibility of causation (as opposed to aggravation), or lack clarity when identifying the diagnosed conditions. They are therefore not adequate for adjudication purposes; VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Remand is therefore required with respect to hypertension and TIA's, to secure adequate nexus opinions with regard to diabetes and any other service-connected disabilities, aside from PTSD. TDIU Entitlement to TDIU is dependent upon evaluation of the impact of service-connected disabilities on a Veteran's ability to secure and follow substantially gainful employment. 38 C.F.R. §§ 3.341, 4.15, 4.16. Here, there remain open questions regarding service connection of various disabilities, and the evaluations to be assigned for already service-connected conditions. The development ordered in connection with those pending appeals will provide information and evidence relevant to TDIU. It would therefore be premature and potentially prejudicial to the Veteran to adjudicate TDIU at this time. Harris v. Derwinski, 1 Vet. App. 180 (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). Moreover, in connection with the obtaining of a clearer picture of current disability levels, evidence specific to the impact of conditions on occupational functioning may be obtained. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Associate with the claims file complete VA treatment records from the medical center in Salisbury, North Carolina, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of December 2009 to the present. 2. Schedule the Veteran for a VA mental disorders examination. The examiner must describe in detail the current signs and symptoms of service-connected PTSD, and discuss the impact of PTSD on daily functioning. Specific discussion of the impact on occupational social, family, and academic functions is required. 3. Schedule the Veteran for an appropriate VA examination for assessment of hypertension and TIA's. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that either hypertension or TIA's were caused or aggravated (worsened beyond the natural progression) by any service-connected disability. The roles of PTSD, diabetes, and ischemic heart disease must be specifically discussed. With regard to diabetes, discussion of the role, if any, on identified diabetic nephropathy is required. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for a VA Social and Industrial Survey examination. The claims folder must be reviewed in conjunction with the examination. The examiner must discuss in detail the impact of the Veteran's service- connected coronary artery disease, PTSD, diabetes, bilateral lower extremity peripheral neuropathy, tinnitus, and hearing loss have upon occupational and social functioning. 5. Thereafter, readjudicate the issues on appeal, to include entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).