Citation Nr: 1331211	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  10-45 341	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and PTSD.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to a rating in excess of 40 percent for bilateral hearing loss. 

5.  Entitlement to an initial rating in excess of 60 percent for residuals of prostate cancer, status post prostatectomy, for the period beginning on May 1, 2012.

6.  Entitlement to an initial compensable rating and/or an effective date prior to July 29, 2010 for the award of service connection for headaches (to be clarified).



REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to March 1970, to include service in Korea from May 1969 to March 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2009 and December 2011 rating decisions issued by two Department of Veterans Affairs (VA) Regional Offices (ROs).

In the October 2009 rating decision, the RO in Philadelphia, Pennsylvania, increased the Veteran's rating for bilateral hearing loss from 30 to 40 percent, effective August 14, 2009.  After the decision was entered, the case was transferred to the jurisdiction of the RO in Pittsburgh, Pennsylvania.

In the December 2011 rating decision, the Pittsburgh RO, in pertinent part, denied service connection for hypertension, PTSD, and anxiety disorder with posttraumatic features; granted service connection for residuals of prostate cancer, status post prostatectomy, evaluated as 100 percent disabling effective from October 21, 2010 to April 30, 2012, and 40 percent disabling thereafter; and granted service connection for headaches, evaluated as 0 percent (noncompensably) disabling effective July 29, 2010.

In January 2012, the Veteran filed a notice of disagreement (NOD) wherein he expressed a desire to appeal, among other things, "issue #3" in the December 2011 rating decision (pertaining to the award of service connection for headaches).  It is not entirely clear from the Veteran's statement whether he is in disagreement with the effective date of the award, the assigned rating, or both.  Thus far, no effort has been made to clarify his NOD.  See 38 C.F.R. § 19.26 (2012).  Nor has he been furnished a statement of the case (SOC) addressing the claim.  See, e.g., 38 C.F.R. § 19.29.  This matter is discussed in further detail herein.

In his January 2012 NOD, the Veteran also expressed a desire to appeal the 40 percent rating assigned for residuals of prostate cancer, status post prostatectomy, for the period beginning on May 1, 2012.  Thereafter, in February 2013, the RO in Pittsburgh increased the rating for that period to 60 percent.  However, the Veteran did not withdraw his NOD.  Under the circumstances, and in light of the fact that still-higher ratings are potentially available, he is entitled to an SOC addressing his entitlement to a rating in excess of 60 percent for residuals of prostate cancer, status post prostatectomy, for the period beginning on May 1, 2012.  See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).  This matter is also discussed in further detail herein.

In May 2013, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board video-conference hearing.  A transcript of that hearing has been prepared and associated with the record on appeal.

During the hearing, the Veteran submitted additional evidence in support of his appeal, together with a waiver of initial review of that evidence by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 20.1304(c) (2012).  He also waived initial AOJ review of evidence received since the issuance of an October 2010 SOC pertaining to his claim for a higher rating for bilateral hearing loss.  Therefore, the Board may properly consider such evidence.

Thus far, the RO appears to have adjudicated the Veteran's claim for service connection for PTSD as though it was an original claim.  However, it is clear from the record that the Board previously denied the claim by a decision entered in October 2007.  As discussed below, the Veteran was advised of the Board's decision, and of his appellate rights, but did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  As a result, the Board's decision became, and remained, final.  38 U.S.C.A. §§ 7252, 7266 (West 2002); 38 C.F.R. § 20.1100 (2007).  Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  See 38 U.S.C.A. § 7104(b) (West 2002); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

With respect to the Veteran's claim for service connection for acquired psychiatric disorders other than PTSD, the Board notes that that claim has not been the subject of a prior final denial.  As such, it is properly characterized as an original claim.  See, e.g., Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996).

Thus far, the RO has limited its consideration of the Veteran's original psychiatric claim to the matter of entitlement to service connection for an anxiety disorder.  However, the evidence shows that he has been diagnosed with psychiatric disorders other than anxiety disorder, to include dysthymic disorder and a cognitive disorder.  Under the circumstances, the Board finds that the Veteran's claim should be expanded.  See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a Veteran's claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope).  Accordingly-and in light of the Board's decision herein reopening the claim for service connection for PTSD-the issue on appeal with respect to entitlement to service connection for an acquired psychiatric has been recharacterized as set forth above, on the title page.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of a copy of the May 2013 Board hearing transcript.
 
The Board's present decision is limited to the matter of whether new and material evidence has been received in order to reopen the previously denied claim for service connection for PTSD.  For the reasons set forth below, the other issues on appeal are being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  By a decision entered in October 2007, the Board denied the Veteran's claim for service connection for PTSD; he was advised of the Board's decision, and of his appellate rights.

2.  The Veteran did not appeal the Board's October 2007 decision to Court, or request reconsideration.

3.  Evidence received since the time of the Board's October 2007 decision is not cumulative or redundant of the evidence of record at the time of that decision, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD.


CONCLUSIONS OF LAW

1.  The Board's October 2007 decision is final.  38 U.S.C.A. §§ 7252, 7266 (West 2002); 38 C.F.R. § 20.1100 (2007) [(2012)].

2.  New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for PTSD is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  However, consideration of the merits of the claim is deferred pending additional development consistent with the VCAA.

Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor.  See 38 C.F.R. §§ 3.304(f), 4.125 (2012); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997).

If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(2) (2012).  VA's General Counsel has held in a precedent opinion that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality."  The determination as to whether evidence establishes that a Veteran engaged in combat with the enemy must be resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99 (Oct. 18, 1999).

When the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor.  Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  In such cases, the record must contain service records or other corroborative evidence that substantiates the Veteran's testimony or statements as to the occurrence of the claimed stressors.  See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

However, in July 2010, the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed.  The new regulations provide that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3).

In the present case, the evidence shows that the Board denied the Veteran's claim for service connection for PTSD by a decision entered in October 2007.  Following a review of the claims file as it then existed-including the Veteran's service treatment records, reports of VA examination and treatment, records from the Social Security Administration, and various lay statements-the Board concluded that it had not been clinically shown that the Veteran had PTSD.

The Veteran was advised of the Board's October 2007 decision and his appellate rights.  However, he did not appeal the Board's decision to the Court, or request reconsideration.  As a result, the Board's decision became, and remained, final.  38 U.S.C.A. §§ 7252, 7266 (West 2002); 38 C.F.R. § 20.1100 (2007) [(2012)].  Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  See 38 U.S.C.A. § 7104(b) (West 2002); Barnett, supra.

Evidence is considered "new" if it was not previously submitted to agency decision makers.  "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Court has held that the determination of whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" should be considered a component what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court has also held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id.

Here, the evidence received since the time of the last final disallowance includes VA treatment records reflecting that multiple "screens" for PTSD were clinically positive.  See, e.g., VA treatment records dated January 7, 2005 and October 25, 2005.  The evidence also includes the Veteran's May 2013 hearing testimony wherein he stated that, while stationed along the demilitarized zone (DMZ) in Korea, he constantly worried about getting attacked.  He testified that his unit was in the DMZ for better than a month at a time; that they were on "tight regulations" in that the enemy could shoot, but his unit could not shoot back; that he could hear explosions in the distance; and that he slept in his clothes.  In addition, the evidence includes the report of a November 2010 VA compensation examination, wherein a psychologist suggested-without benefit of the Veteran's May 2013 hearing testimony- that he could not diagnose PTSD because the only stressor considered at that time (i.e., seeing dead and mutilated bodies on one occasion) was insufficient to support a diagnosis.

The Board concludes that this evidence is new, in that it was not before the Board when the Veteran's claim was denied in October 2007.  It is also material in that it relates to unestablished facts necessary to substantiate the claim.  Specifically, the positive PTSD screens suggest the presence of symptoms associated with PTSD.  In addition, the Veteran's testimony with respect to constant fear while stationed in the DMZ goes to the establishment of a stressor relating to "fear of hostile military or terrorist activity," as set out in current regulations.  Further, the opinion from the November 2010 VA examiner appears to leave open the possibility, if not the probability, that, if evidence was presented with respect to additional, or more significant, stressors, a diagnosis of PTSD might be warranted.  As noted below, in the REMAND section of this decision, the new evidence, taken together, triggers the Secretary's duty to assist in obtaining another opinion.  See Shade, supra.

Therefore, the Board finds that the new evidence, taken together, and viewed in the context of the evidence previously assembled, tends to prove previously unestablished facts necessary to substantiate the underlying claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim.  It is therefore new and material.  Accordingly, the claim is reopened.

ORDER

The Veteran's claim for service connection for PTSD is reopened; to this limited extent, the appeal is granted.


REMAND

Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources.  38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2012).  VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).

In the present case, the Veteran has indicated that he received relevant treatment at the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania, beginning in 2000, to include testing in the neurobehavioral program at that facility in February 2004.  See VA Forms 21-526EZ and 21-4138, dated August 2010.  He has also reported receiving relevant treatment through the Bon Secours Holy Family Health System in Altoona, Pennsylvania (where he reportedly underwent testing in June 2001), and from Shenggao Han, M.D. (who reportedly treated the Veteran for, among other things, hypertension, depression, and hearing loss).

Presently, the claims file contains reports of VA compensation examinations from the Pittsburgh VAMC, but no reports of treatment or neurobehavioral testing from that facility.  The claims file contains two letters, but no clinical records, from Dr. Han, and no records at all from Bon Secours Holy Family Health System.  Because the clinical records from these facilities, if obtained, could contain information germane to the Veteran's appeal, efforts should be made to procure them.  See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records).

With respect to the Veteran's claim for an acquired psychiatric disorder, to include anxiety disorder and PTSD, the Board notes that the RO has thus far declined to contact the U.S. Army and Joint Service Records Research Center (JSRRC) for purposes of corroborating the Veteran's claimed in-service stressors, finding the available information insufficient.  The Board notes, however, that the Veteran has, in fact, provided some specific information in this regard.

In particular, the Veteran has reported seeing dead and mutilated bodies in October 1969, immediately following an attack on a nearby unit while stationed in the Korean DMZ.  In addition, his service personnel records show that, during the time in question, he was assigned to Company A, 1st Battalion, 31st Infantry, 7th Infantry Division, USARPAC.   Under the circumstances, given that the Veteran's unit assignment is known, and the fact that he has narrowed the time frame of the event in question to a 30-day period, the Board finds that the available information pertaining to the alleged stressor should be submitted to the JSRRC for corroboration.

With respect to the need for medical examinations and/or opinions, as noted previously, the Veteran was examined by a psychologist for VA compensation purposes in November 2010.  The examiner did not diagnose PTSD.  However, the examiner did not have the benefit of the Veteran's May 2013 hearing testimony to the effect that, while stationed along the DMZ in Korea, he constantly worried about getting attacked.  Under current VA regulations, cited above, if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3).

Here, the Veteran's service in the Korean DMZ has been acknowledged (for purposes of establishing exposure to herbicides).  His testimony with respect to fear of hostile military activity seems consistent with the circumstances of that service and his military occupational specialty (MOS) of Light Weapons Infantryman.  Accordingly, and because it appears that the examiner did not consider this particular stressor when the Veteran was examined in November 2010, a new psychiatric examination is necessary.

With respect to the Veteran's claim for a higher rating for bilateral hearing loss, the Board notes that the Veteran last underwent a VA audiometric examination, for compensation purposes, in October 2009.  Since that time-to include in testimony offered at the hearing in May 2013-he has indicated that his hearing has gotten worse.  As such, a new audiometric examination is also required.  See, e.g., 38 C.F.R. § 3.327(a) (2012); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

The RO last associated with the Veteran's claims file contiguous records of his treatment through the VAMC in Altoona, Pennsylvania (to include the VA Community Based Outpatient Clinic (CBOC) in Johnstown, Pennsylvania) on September 21, 2011.  On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claims are adjudicated on the basis of an evidentiary record that is as complete as possible.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession).

As discussed above, the Veteran has filed a timely NOD with respect that portion of the RO's December 2011 decision that granted service connection for headaches, evaluated as 0 percent (noncompensably) disabling effective July 29, 2010.  See Introduction, supra.  His NOD with respect to the rating assigned for residuals of prostate cancer, status post prostatectomy, for the period beginning on May 1, 2012, also remains valid.  Id.  Thus far, no effort has been made to clarify his NOD with respect to his service-connected headaches (i.e., whether he is in disagreement with the effective date of the award, the assigned rating, or both).  Nor has he been furnished an SOC addressing that claim, or his claim for a higher rating for residuals of prostate cancer.  In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that when an appellant files a timely NOD as to a particular issue, and no SOC is furnished, the Board should remand, rather than refer, the issue for the issuance of an SOC.

For the reasons stated, this case is REMANDED for the following actions:

1.  Ask the Veteran to provide releases for relevant records of treatment from Shenggao Han, M.D., and Bon Secours Holy Family Health System, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal.  If he provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159.  Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file.  If any records identified by the Veteran as relevant are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified.

2.  Ask the JSRRC to provide as much information as possible with respect to the reasonableness of the Veteran's reported fear of hostile military activity while stationed on the Korean DMZ as a Light Weapons Infantryman with Company A, 1st Battalion, 31st Infantry, 7th Infantry Division, USARPAC, between May 1969 and March 1970; specifically, his report that he could hear explosions in the distance, and was constantly worried about getting attacked.  Also ask the JSRRC to attempt to verify the Veteran's report that his unit encountered dead and mutilated bodies in October 1969, following an attack on another, nearby unit while stationed in the Korean DMZ.  The JSRRC should be asked to indicate whether any additional information is required of the Veteran to conduct its research and, if so, he should be asked to provide the additional information.

3.  Take action to ensure that all relevant records of the Veteran's treatment through the VAMC in Pittsburgh, Pennsylvania are associated with the claims file-including, but not limited to, any records of testing he underwent in connection with the neurobehavioral program at that facility in February 2004-following the procedures set forth in 38 C.F.R. § 3.159.  Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile.  38 C.F.R. § 3.159(c)(2).  If additional records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified.

4.  Obtain copies of records pertaining to any relevant treatment the Veteran has received through the VAMC in Altoona, Pennsylvania (to include the VA CBOC in Johnstown, Pennsylvania) since September 21, 2011. The evidence obtained, if any, should be associated with the claims file.  If additional records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified.

5.  After all of the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a mental disorders examination, to be conducted by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted.  The examiner should review the claims file.  All indicated tests, including psychological testing, should be conducted and the results reported.

After examining the Veteran and reviewing the claims file, the examiner should indicate whether the Veteran meets the diagnostic criteria for PTSD.  If PTSD is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to one or more established in-service stressors (to include the Veteran's report that his unit encountered dead and mutilated bodies in October 1969, following an attack on another, nearby unit while stationed in the Korean DMZ, if verified, and his reported fear of hostile military activity while stationed on the Korean DMZ; specifically, his report that he could hear explosions in the distance, and was constantly worried about getting attacked).

If psychiatric disorders other than PTSD are diagnosed, to include any cognitive disorder(s), the examiner should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder manifested in service or is otherwise attributable to service.

In so doing, the examiner should discuss the November 2010 VA examiner's conclusion to the effect that it is at least as likely as not that an anxiety disorder with posttraumatic features first occurred while the Veteran was on active duty.

A complete medical rationale for all opinions expressed must be provided.

6.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If any claim remains denied, the Veteran and his representative should be issued a supplemental SOC.  An appropriate period of time should be allowed for response.

7.  Ask the Veteran to clarify whether he still disagrees with the RO's decision to grant service connection for headaches, evaluated as 0 percent (noncompensably) disabling effective July 29, 2010, and, if so, whether he is in disagreement with the effective date of the award, the assigned rating, or both.  Also ask him to clarify whether he still disagrees with the rating assigned for residuals of prostate cancer, status post prostatectomy, for the period beginning on May 1, 2012 (currently evaluated as 60 percent disabling).  Unless the claim(s) is (are) resolved by granting the benefits sought, or the NOD(s) is (are) withdrawn, furnish an SOC to the Veteran and his representative, in accordance with 38 C.F.R. § 19.29, concerning the matters with which the Veteran has expressed dissatisfaction.  The issue(s) should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

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).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the U.S. 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. 2013).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs