Citation Nr: 1337012 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-02 676A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with symptoms of anxiety and depression, prior to March 9, 2012; and in excess of 70 percent from that date. REPRESENTATION Appellant represented by: Michelle D. Powers, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty from February 2003 to May 2004 with additional National Guard service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for depression, anxiety, left shoulder disability, low back disability, and PTSD. The Veteran filed a notice of disagreement in July 2010. A statement of the case was issued in December 2010. The Veteran perfected his appeal in February 2011. An interim July 2011 (notice sent August 2011) rating decision granted service connection for PTSD with symptoms of anxiety and depression with a 30 percent rating effective March 4, 2009. In January 2012, the Veteran's attorney filed notice of disagreement with the July 2011 rating decision that assigned an initial 30 percent rating. The Veteran presented testimony before the Board in April 2012. The transcript of that hearing has been associated with the claims file. At the hearing the Veteran was granted a 60-day abeyance period to allow for the submission of additional evidence. An interim August 2012 rating decision increased the rating for PTSD with symptoms of anxiety and depression to 70 percent effective March 9, 2012. However, as this was not a full grant of the benefit sought on appeal, and the Veteran had not expressed satisfaction with that determination, his appeal proceeds from the initial unfavorable rating decision. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The record shows that the Veteran received treatment from a VA Medical Center (VAMC) from 2009 to the present. While the claims file does contain some VA treatment records, it appears all of the Veteran's VA treatment and medical records have not been associated with the claims file. For example, the claims file contains only a partial report of an April 2009 MRI [magnetic resonance imaging] of the lumbar spine. At the April 2012 Travel Board hearing the Veteran's attorney indicated that the Veteran received treatment at a VAMC for his low back and left shoulder in 2011. In addition, an MRI of the low back and x-rays of the left shoulder were taken in 2011. In a February 2011 VA outpatient primary care provider report, the impression was lumbar disc disease, "MRI - shows disc disease[.]" Copies of these records are not available for review in the claims file, including in Virtual VA. As VA these treatment/medical records are constructively of record and contain pertinent information, they must be secured. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Regarding the claim for service connection for a left shoulder disability, STRs show an assessment of questionable rotator cuff injury following the Veteran's complaints that he hurt his shoulder while bench pressing at the gym (during a physical training assignment). At his April 2012 Travel Board hearing the Veteran testified that he had been experiencing left shoulder symptoms since the in-service incident in 2003. As the evidence of record suggests that the Veteran may have a left shoulder disability related to an injury in service, the "low threshold" standard as to when an examination to secure a nexus opinion is required is met, and development for such an examination is necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim for service connection for a low back disability, the Veteran has been diagnosed with a low back disability. He alleges that he injured his back in service while on a recovery mission of a "broke-down" vehicle. When he reached for the tow hook and tow chains in the back of the wrecker, he slipped and fell on his back. A January 2012 written statement from a service buddy, who accompanied him on that mission, notes that the Veteran's foot slipped and he fell off the wrecker. In light of the foregoing, the "low threshold" standard as to when an examination to secure a nexus opinion is required is met, and development for such an examination is necessary. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 79. In January 2012 the Veteran's attorney filed a notice of disagreement with the July 2011 (notice sent August 2011) rating decision that granted service connection for PTSD with symptoms of anxiety and depression with a 30 percent rating effective March 4, 2009. In an August 2012 rating decision, the RO increased the rating for PTSD with symptoms of anxiety and depression to 70 percent, effective March 9, 2012. The RO has not issued an SOC addressing the issue of an increased rating in excess of 30 percent for PTSD with symptoms of anxiety and depression prior to March 9, 2012 and in excess of 70 percent after that date. Therefore, a remand is required for the issuance of an SOC in the matter. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Appropriate action should be taken to obtain copies of all VA treatment records and medical reports associated with the Veteran's low back and left shoulder disabilities from 2009 to the present (that are not already of record) to specifically include 2009 and 2011 MRIs of the lumbar spine and 2011 x-rays of the left shoulder. If these records are unavailable, it should be clearly documented in the claims file. 2. The RO should issue an SOC in the matter of an increased rating in excess of 30 percent for PTSD with symptoms of anxiety and depression prior to March 9, 2012 and in excess of 70 percent after that date. The Veteran should be advised that this matter will only be before the Board if he timely perfects an appeal by submitting a Substantive Appeal. If he does so, the matter should be returned to the Board for appellate consideration. 3. The RO should arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his left shoulder and low back disabilities. The examiner(s) must review the Veteran's claims file in conjunction with the examination(s). Following examination(s) of the Veteran, and review of his pertinent medical history the examiner(s) should provide an opinion that responds to the following: a. Please identify (by medical diagnosis) any left shoulder and low back disabilities found. b. As to each diagnosed left shoulder and low back entity, please indicate whether it is at least as likely as not (a 50% or greater probability) that such is related to the Veteran's active service (to include the injury to the left shoulder while bench pressing, and the fall from the wrecker on his back). The examiner(s) is asked to explain the rationale for all opinions, with citation to supporting clinical data and/or medical texts or treatises as deemed appropriate. 4. The RO should then review the expanded record (to include lay statements submitted by the Veteran in 2012) and readjudicate the issues. Thereafter, the Veteran and his attorney should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for appellate review. 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 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). _________________________________________________ ALAN S. PEEVY 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 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) (2013).