Citation Nr: 1334803 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-26 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to higher disability ratings for service-connected posttraumatic stress disorder (PTSD), initially rated as 30 percent disabling prior to September 16, 2009, and rated as 50 percent disabling since. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2001 to July 2005, including service in Iraq. His awards and decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the April 2009 rating decision, the RO granted service connection for PTSD and assigned a 30 percent disability rating, effective October 31, 2008. In the July 2009 rating decision, the RO, in relevant part, denied service connection for a back disability. In a January 2010 rating decision, the RO increased the disability rating for service-connected PTSD to 50 percent, effective September 16, 2009. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, remand is required in order to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. Back Disability With respect to the Veteran's service connection claim for a back disability, the Veteran contended in his June 2012 VA Form 9 that he complained of back pain multiple times during his service as a result of carrying loads in excess of the recommended level. He indicated that these occasions occurred during training exercises as well as in combat operations. One specific instance of back trouble is noted in his service treatment records (STRs). Specifically, he received clinical treatment in January 2002, when he was noted to have a mild, mid-back spasm. The Veteran was afforded a VA examination to determine the etiology of his claimed back disability in March 2010. After examining the Veteran, the examiner diagnosed right sacroiliac (SI) joint dysfunction. The examiner gave the opinion that the Veteran's current right SI joint dysfunction appeared to be different from the pain that he experienced during service. The examiner noted that the one instance of pain in the Veteran's STRs was in the mid lumbar region. As such, the examiner concluded that it was less likely than not that his current disability was related to his active service. The Veteran and his representative have contended, and the Board concurs, that the March 2010 VA examiner did not appear to consider the Veteran's contentions regarding his multiple in-service complaints of back, or his contention that his current disability was caused by carrying excessive weight, including during combat situations. Rather, the examiner appeared to rely only on the absence of additional medical records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, remand is required to obtain a new medical opinion regarding the etiology of the Veteran's claimed back disability based on all the evidence of record. Given the Veteran's record of combat, the provisions of 38 U.S.C.A. § 1154(b) are potentially applicable. These provisions create a presumption that a combat Veteran's reports of injuries sustained in combat are correct. Those provisions apply to an injury and the in-service consequences of that injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). PTSD With respect to the Veteran's increased rating claim for PTSD, the Board observes that in September 2009, after the issuance of the April 2009 rating decision that awarded service connection for PTSD, the submitted a statement indicating that he was not satisfied with the disability rating assigned for his PTSD. The Board accepts this submission as a timely notice of disagreement with the rating assignment made in the April 2009 rating decision. See Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). The RO has not yet issued the Veteran a statement of the case (SOC) with respect to his claim for higher initial disability ratings for service-connected PTSD. As such, before the Board can consider this claim on appeal, it is required to remand it for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA orthopedic examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should diagnose and describe all back disabilities found to be present, to include any right SI joint dysfunction. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability, to include a right SI joint dysfunction, had its clinical onset during the Veteran's active service or is related to any in-service disease, event, or injury, to specifically include as a result of carrying excessive weight during multiple training exercises and combat operations. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Send the Veteran and his representative a statement of the case with respect to the issue of entitlement to an increased initial disability rating for PTSD. If the Veteran perfects an appeal by submitting a timely and adequate substantive appeal on this issue, then the issue should be returned to the Board for further appellate procedure. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the Veteran's service connection claim on appeal. If his claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran 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). These claims 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. 2013). _________________________________________________ Thomas H. O'Shay 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. See 38 C.F.R. § 20.1100(b) (2013).