Citation Nr: 1336683 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 11-29 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 through June 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran filed a claim for entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) in November 2010. The TDIU claim was denied in a November 2012 rating decision. The Veteran has not initiated an appeal, nor has he presented other evidence of unemployability. Thus, the Board lacks jurisdiction over this matter. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 Service connection has been established for PTSD effective from February 19, 2010. As such, the rating period for consideration on appeal is from February 19, 2010. A June 2010 VA PTSD examination referenced VA treatment records, apparently generated prior to June 2010, that show chronic depression and chronic back pain, as well as a negative posttraumatic stress disorder screen. These records do not appear to be associated with the claims file. The evidence shows that only one VA treatment record prior to June 2010 has been received - a clinical note dated March 2010 showing prescriptions for psychiatric medication. In a March 2010 letter, the Veteran stated that he was scheduled for a follow-up appointment in May 2010 for PTSD. The August 2010 rating decision states that VA treatment records from March 2010 to July 2010 were reviewed. Most of these notes are not of record. The treatment notes that are of record, with the exception of the March 2010 note referenced above, are dated from November 2010 to May 2012. Thus, a request for all treatment records prior to November 2010 and since May 2012 must be obtained upon remand. A VA examination relating to the Veteran's back disability claim was held in June 2010. The examiner noted the Veteran's report of a back injury in Vietnam, as well as the service treatment records noting treatment for back pain. However, he found that it was less likely than not that the Veteran's current back disability was related to those episodes, because the Veteran's discharge exam was negative for a back disorder and there was "no interim data following discharge nor evidence indicating a chronic condition following discharge." However, the examiner did not consider the Veteran's statement during the examination that he has experienced back pain since his time in Vietnam. The Veteran is competent to report the onset and frequency of back pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, this medical opinion is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence may be competent to support presence of a disability even where not corroborated by contemporaneous medical evidence). Moreover, the Veteran has indicated he received treatment for his fall at the Marine Corps Base (MCB) in Quantico, Virginia when he returned to the United States in 1971. According to his service personnel records, he was stationed at Quantico from March 1971 through September 1971; however, no records from Quantico are included in the service treatment records (STRs). The Veteran asserts that these records are missing. On remand, every effort must be made to locate the Veteran's STRs from Quantico. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) and/or any other appropriate agency to request that all STRs and hospitalization records from the Veteran's assignment at MCB Quantico, from March 1971 through September 1971, be provided for inclusion with the claims folder. All efforts to obtain these records should be documented and any negative responses should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 2. Following completion of the above requested action, if the requested records have not been obtained, contact the Naval Medical Clinic at MCB in Quantico, Virginia, or any other hospital associated with the MCB in Quantico, Virginia, and request that any and all available records of the Veteran's hospitalization at Quantico at any time from March 1971 through September 1971 be provided for appellate review. 3. Contact the Dallas VA Medical Center and all associated satellite facilities and obtain all records of VA treatment of the Veteran dated prior to November 2010 and since May 2012. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Once the aforementioned development has been completed to the extent possible, forward the Veteran's entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) to the June 2010 VA examiner, or appropriate substitute clinician, for an addendum opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. If additional clinical examination of the Veteran is required to provide the below requested opinion, such examination should be scheduled. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability had its onset as a result of the Veteran's period of active service. The examiner is advised that the Veteran is competent to report a back injury and/or back pain during service and since that time. The examiner must set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his period of military service. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Thereafter, readjudicate the issues (initial evaluation for PTSD in excess of 50 percent, and service connection for back disability). If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ U. R. POWELL 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 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) (2013).