Citation Nr: 1331159 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-07 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right shoulder strain. 2. Entitlement to service connection for a neck condition Entitlement to an increased disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 and January 2009 rating decisions by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA). For historical purposes, the Veteran submitted his initial claim for entitlement to service connection for a right shoulder strain and a neck condition in August 2006. His claim was denied by the RO on August 9, 2007. The Veteran submitted a timely notice of disagreement, dated August 7, 2008. However, in a statement dated August 12, 2008, along with a letter from a private physician, the Veteran stated he wished to withdraw his notice of disagreement "[i]f this new information meets your requirement for 'new and material information' to reconsider the claims..." The letter from a private physician provided a positive nexus opinion regarding his claims for entitlement to service connection for a right shoulder condition and a neck condition. A claimant has one year from the date of notice of a RO decision in which to submit a notice of disagreement. 38 U.S.C.A. § 7105(b). If a notice of disagreement is not received within one year of the notice, the decision becomes final. 38 U.S.C.A. § 7105(c). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board finds that since the Veteran's notice of disagreement was timely submitted, the August 9, 2007, rating decision is not final. As such, new and material evidence is not required for reconsideration and the Board will proceed with review of the Veteran's appeal. 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 Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). Regarding the issues of entitlement to service connection for a right shoulder condition and a neck condition, the Board notes that the Veteran's in-service treatment records indicate complaints of right shoulder pain in June 1971. In November 1971 possible early arthritis of the right shoulder was noted. The Veteran also reported neck twitching and spasms in January 1970. The Veteran underwent a VA examination for his right shoulder condition in July 2007. Upon examination and the Veteran's history of his symptomatology, he was diagnosed with a right shoulder strain with residual muscle atrophy. As to the etiology of the condition, the examiner stated an opinion could not be reached without mere speculation. The Veteran submitted an August 2008 letter from his private doctor, Dr. B. R. B., who stated that, "[a]fter obtaining a detailed history from [the Veteran], reviewing his military records and a thorough examination, it is my opinion that his neck and shoulder pain stem from the injuries he received on December 8, 1969, when he was a soldier in Vietnam, particularly the neck injury." The Board finds the August 2008 positive nexus opinion inadequate as the examiner did not provide any rationale for the opinion. The opinion also did not discuss the significance of the Veteran's prior history of complaints during service. In addition, the Board notes that while the Veteran was afforded a VA examination pertaining to his right shoulder claim, he has not been afforded a VA examination for his neck condition. As such, given the lay statements regarding his symptomatology and evidence of in-service complaints, the Veteran should be afforded a VA examination for further development in order to determine the etiology of the disabilities. As such, further development is necessary before a final determination is made. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of 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). Regarding the issue of entitlement to an increased disability rating in excess of 50 percent for service-connected PTSD, in a March 2011 statement the Veteran's representative contended that the Veteran's PTSD was more severely disabling than reflected in the disability evaluation assigned. Under the Veterans Claims Assistance Act of 2000 ("VCAA"), VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that takes into account records of prior examinations and treatment. See Green, 1 Vet. App. at 121. Review of the claims folder reveals that the Veteran was last afforded a VA examination for his PTSD in August 2008, over five years ago. As such, the Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green, 1 Vet. App. at 124. In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination(s) to ascertain the current nature of any neck and right shoulder disabilities. After a review of the record on appeal and an examination of the claimant, the examiner should provide opinions regarding whether it is at least as likely as not (probability of 50 percent of more) that any current neck and right shoulder disabilities is directly related to the complaints noted during service, that is, whether the current neck and right shoulder disabilities had its onset in, or is otherwise due to, service. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. In addition, the August 2008 nexus opinion provided by Dr. B. R. B. should be addressed. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Schedule the Veteran for an appropriate examination(s) for the purpose of determining the nature and severity of his PTSD. The claims folder contents must be made available to the examiner prior to the examination for review. After physically evaluating the Veteran, the medical examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the applicable rating criteria. A GAF score for the PTSD should be assigned to the extent possible. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints should be recorded in full. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed 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). _________________________________________________ F. JUDGE FLOWERS 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).