Citation Nr: 1330767 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-15 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to increased initial evaluation for post traumatic stress disorder, currently considered 30 percent disabling. 2. Entitlement to service connection for degenerative arthritis, claimed as a joint condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from June 2004 to June 2005, and is a recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal initially included a claim for service connection of a lower and upper back condition. However, the Veteran withdrew this issue by limiting his appeal to the issues increased initial evaluation for posttraumatic stress disorder (PTSD) and service connection for arthritis on his April 2010 substantive appeal. This issue is not before the Board for appellate review. See 38 U.S.C.A. § 7105(d)(3). The Veteran also filed a September 2009 claim for service connection of hypertension, which the RO granted in a February 2010 rating decision. He initiated an appeal on the issue of increased initial evaluation for hypertension with a March 2010 notice of disagreement, but failed to perfect that appeal with a timely VA Form 9. The Veteran informed the RO that he had not received their September 2010 statement of the case (SOC) in an April 2012 telephone call. The RO sent the Veteran a second copy of the September 2010 SOC in May 2012, and the Veteran attempted to respond to the SOC with a May 2012 statement. The RO clearly advised the Veteran in that mailing that the appeal period on the issue of increased initial evaluation for hypertension had ended Although the Veteran indicated that he did not receive the September 2010 SOC, his address has remained the same since he filed his original May 2009 claim for service connection of posttraumatic stress disorder (PTSD). The RO received no indication that the September 2010 SOC was returned as undeliverable. Ashley v. Derwinski, 2 Vet. App. 307 (1992) (explaining the need for clear and convincing evidence to rebut the presumption that government officials discharged their duties). As there is nothing to rebut the presumption of regularity, and the RO clearly informed the Veteran that the appeal period had expired, the Veteran's May 2012 statement cannot be accepted as a substantive appeal. However, the May 2012 statement raises the issue of a claim for increased evaluation of service connected hypertension. The Agency of Original Jurisdiction (AOJ) has not adjudicated that claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In August 2012, subsequent to the RO's July 2012 supplemental statement of the case (SSOC), the Veteran submitted a further statement in support of his claim. The RO certified this appeal to the Board in August 2012 without reviewing that statement in a further SSOC. However, the Veteran's representative has submitted a September 2013 waiver of that August 2012 statement, allowing the Board's initial review of this new evidence. 38 C.F.R. § 20.1304. The Board reviewed all records contained in Virtual VA in making this 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 seeks service connection for a joint condition; and the Board notes that the Veteran has offered lay evidence as to joint pain in his neck, hands, knees, hips, and back in his April 2010 substantive appeal. His VA treatment records further show current diagnosis for degenerative changes of the lumbar spine based on a June 2009 X-ray. His service treatment records include a May 2004 pre-deployment survey showing preparation for deployment to Southwest Asia. Service connection may be established for a Persian Gulf Veteran who develops a chronic disability resulting from an undiagnosed illness which became manifest during active service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of an undiagnosed illness include muscle and joint pain. 38 C.F.R. § 3.317(b). In the present case, given the Veteran's service in Southwest Asia, and lay testimony as to current symptoms of chronic joint and muscular pain; the Board is of the opinion that a VA examination should be obtained in consideration of service connection for chronic joint and muscular pain under 38 C.F.R. § 3.317(b). McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). There also appear to be missing service records, such as the Veteran's personnel file and service treatment records related to his deployment. For example, the Veteran reported at his July 2009 and December 2009 VA examinations that he deployed to Iraq from September 2004 to April 2005, but the DD 214 does not include the dates of deployment and the service treatment records in the claims file do not include a post-deployment survey. On remand, the RO/AMC should also obtain the missing service records. 38 U.S.C.A. § 5103A(c)(1). On the issue of increased initial evaluation for PTSD, the Board notes that there are missing VA treatment records. The Veteran attended VA PTSD examinations in July 2009, July 2010, and June 2012. The July 2010 examiner referenced a June 2009 VA diagnosis for PTSD, with a GAF score of 55 by Dr. D.D. The July 2010 examiner reviewed VA group treatment records from February 2010 to May 2010 with Dr. L.T. Neither the June 2009 diagnosis nor the February 2010 to May 2010 treatment records from the VA's North Texas Healthcare System have been associated with the Veteran's claims file. As VA is held to be in "constructive possession" of VA generated records, the Board must remand this issue for obtaining those treatment records. Bell v. Derwinski, 2 Vet. App 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the North Texas Healthcare System for all mental health treatment records since June 2009, including the February 2010 to May 2010 group treatment records. 2. The RO/AMC should obtain the Veteran's personnel and service treatment records relating to his September 2004 to April 2005 deployment to Southwest Asia, including any post deployment survey. 3. After the Veteran's outstanding service records and VA treatment records have been obtained, schedule the Veteran for VA examination to ascertain the nature and etiology of all disorders related to joint and muscular pain which may be present. The examiner is requested to review all pertinent records associated with the claims file, and following this review and the examination render an opinion as to the following: a. Are there any current diagnosed conditions related to the Veteran's joint and muscular pain of the neck, hands, knees, hips, and back; and b. If there is a currently diagnosed disability, the examiner is requested to express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed chronic condition is causally or etiologically related to any incident of the Veteran's active service; or c. If there is no diagnosed disability, whether there are signs and symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. If the examiner is unable to form an opinion without resort to speculation, the examiner should so explain. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. 4. Then, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the Veteran's claim on appeal. If the benefits sought on appeal are not granted in full, provide the Veteran and his representative with a SSOC and allow an appropriate time for response. 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). ______________________________________________ CHERYL L. MASON 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).