Citation Nr: 1336580 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 06-39 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to receipt of VA compensation at a rate in excess of 5 percent during incarceration. 3. Entitlement to an effective date prior to November 29, 2004, for the grant of entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1969. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2005 and May 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran's claims were remanded by the Board in November 2009. In an April 2011 decision, the Board denied the Veteran's claim of entitlement to an increased initial disability rating for service-connected PTSD as well as his claim of entitlement to receipt of VA compensation at a rate in excess of 5 percent during incarceration. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court issued a Memorandum Decision which vacated the Board's decision and remanded the case to the Board for further consideration. As detailed in the Memorandum Decision and further discussed below, the Court determined that the Veteran filed a notice of disagreement (NOD) with the effective date of service connection for PTSD, which was assigned in the March 2005 rating decision. A statement of the case (SOC) pertaining to that issue has yet to be issued by the RO. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the increased rating claim to the agency of original jurisdiction so that a SOC may be issued. Accordingly, the issue of entitlement to an earlier effective date for the grant of service connection for PTSD, as well as the other issues on appeal, are REMANDED to the VA RO. VA will notify the Veteran if further action on his part is required. REMAND In the March 2013 decision, the Court addressed the Veteran's contentions with respect to three claims: entitlement to an earlier effective date for the grant of service connection for PTSD, entitlement to an increased initial disability rating for service-connected PTSD, and entitlement to receipt of VA compensation at a rate in excess of 5 percent during incarceration. Initially, with respect to the claim of entitlement to an earlier effective date for the grant of service connection for PTSD, as was noted above, a March 2005 rating decision granted service connection for PTSD and assigned a 10 percent disability rating, effective November 29, 2004. In the March 2013 Memorandum Decision, the Court determined that the Veteran expressed timely disagreement with the assigned effective date. In Manlincon, 12 Vet. App. 238, the Court held that where an NOD is filed but an SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that an SOC may be issued. Thus, the agency of original jurisdiction must issue an SOC as to the issue of entitlement to an effective date prior to November 29, 2004, for the grant of service connection for PTSD. As to the claim of entitlement to an initial disability rating in excess of 10 percent for service-connected PTSD, the Court determined that the Board relied on an inadequate VA medical examination in rendering its April 2011 decision which denied an increased rating. Specifically, the Court initially noted that the Veteran was afforded a July 2010 VA examination, the report of which indicated that it was less likely than not that the Veteran has PTSD related to his Vietnam experiences. The Court then indicated the following: To the extent that the July 2010 VA examination report constitutes a change in diagnosis, the Board failed to "determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition." 38 C.F.R. § 4.125(b). The regulation further requires that, where "it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination." Id. The Board did not do so. The Court further determined: [T]he examiner's discussion of [the Veteran's] claimed stressor evinces a misunderstanding of the level of detail necessary to support a nexus finding . . . . To the extent that the examiner was not required to consider this aspect of the law, the Board was required to account for the examiner's misunderstanding, and did not. The Court then instructed that, upon remand, the Board is required to seek a new medical examination, which identifies any and all of the Veteran's current mental disorders, their severity, and their relationship to service. The Court additionally noted that the examiner should be expressly informed of VA's March 2005 determination that the Veteran's combat-related stressors are conceded. Thus, the Board finds that remand is necessary to afford the Veteran a VA psychological examination to address his increased initial rating claim pursuant to the mandates of the March 2013 Memorandum Decision. To this end, the Board recognizes that the Veteran remains incarcerated. Therefore, VA must take care to abide by the guidelines set forth for the examination of incarcerated veterans. Specifically, the AOJ or the local Veterans Health Administration (VHA) Medical Examination Coordinator is to confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel. If not, the Veteran may be examined at the prison by (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. See VA ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part III.iv.3.A.11.d (2008). With respect to the claim of entitlement to receipt of VA compensation at a rate in excess of 5 percent during incarceration, the Court determined that this issue is inextricably intertwined with the other claims on appeal. In other words, if either claim is granted, it may impact VA's analysis of the claim of entitlement to receipt of VA compensation at a rate in excess of 5 percent during incarceration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, the Board will defer consideration of said claim. Accordingly, the case is REMANDED for the following action: 1. Make arrangements for a psychological examination of the incarcerated Veteran, using the guidelines established in VA ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part III.iv.3.A.11.d. All efforts to schedule this examination should be fully documented. Such examination should determine the extent of his service-connected PTSD. The claims file must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected PTSD. The results of any such testing and studies should be included in the examination report. The examiner should identify any and all of the Veteran's current psychological disorders. The examiner should provide a detailed account of all manifestations of the service-connected PTSD found to be present. In addition, a Global Assessment of Functioning (GAF) score should be assigned, along with an explanation of the number assigned to the Veteran. The examiner should also detail the nature, extent, and severity of any other psychological disorders. To the extent possible, the examiner should distinguish between symptomatology associated with the service-connected PTSD versus that associated with any other psychological disorder diagnosed upon examination. In this regard, if the examiner is unable to differentiate between symptomatology attributed to the service-connected PTSD and any other diagnosed psychological disability, he or she should so explicitly state. If the examiner diagnoses the Veteran with any psychological disorder other than PTSD, he/she should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that said disorder had its clinical onset in service or is otherwise related to the Veteran's military service to include his conceded combat exposure during his Vietnam service, as detailed in the March 2005 VA memorandum. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. A complete rationale should be given for all opinions and conclusions expressed. 2. The agency of original jurisdiction should issue an SOC pertaining to the issue of entitlement to an effective date prior to November 29, 2004, for the grant of service connection for PTSD. In connection therewith, the Veteran and his attorney should be provided with appropriate notice of his appellate rights. If, and only if, the Veteran perfects an appeal of this issue should this question be returned to the Board. 3. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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 remanded by the Board or by Court 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). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).