Citation Nr: 1343522 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-35 523 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for polyneuropathy of the upper and lower extremities, to include as secondary to service-connected disability(ies). 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability(ies) (TDIU). REPRESENTATION Appellant represented by: Allen Gumpenberger, Attorney-Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1967. This appeal to the Board of Veterans' Appeals (Board) arose from various RO rating decisions. In a November 2009 rating decision, the RO granted service connection and assigned an initial 50 percent rating for PTSD, effective June 13, 2005. In December 2009, the Veteran filed a notice of disagreement (NOD) with the assigned rating. A statement of the case (SOC) was issued in June 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2010. In a May 2010 rating decision, the RO denied service connection for polyneuropathy of the upper and lower extremities, and a TDIU. In June 2010 the Veteran filed a NOD. A SOC was issued in December 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2010. Because the appeal involves disagreement with the initial rating assigned following the award of service connection for PTSD, the Board has characterized such matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In June 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In January 2012, the Board, inter alia, denied the claim for an initial rating in excess of 50 percent for PTSD. The Board also remanded the claims for service connection for polyneuropathy of the upper and lower extremities and for a TDIU to the RO for further development. Relevant to the initial PTSD rating claim, the Veteran appealed the January 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court granted the Joint Motion for Partial Remand filed by representatives for both parties, vacating the Board's decision, and remanding the higher rating claim to the Board for further proceedings consistent with the Joint Motion. Specifically, the parties found that the claim for a higher initial rating for PTSD was potentially inextricably intertwined with the claims for service connection for polyneuropathy and TDIU claims; and that the claim should be remanded for readjudication following resolution of the matter of whether the Veteran has an alcohol-related disability that was caused or is aggravated by his PTSD. In light of points raised in the Joint Motion for Partial Remand, and upon review of the claims file, the Board remanded the PTSD claim to the RO in February 2013. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board's review of the claims file reveals that additional RO action on the claims remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instruction, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the Introduction, the matters regarding polyneuropathy of the upper and lower extremities and a TDIU were remanded by the Board in a January 2012 decision. The Board remanded the claim, in part for VA examination and medical opinion. The VA examiner was specifically asked to offer an opinion as to whether the Veteran's alcohol-related polyneuropathy was caused or aggravated by his service-connected PTSD. In rendering the requested opinion, the examiner was to specifically address the relationship between the Veteran's PTSD, his alcoholism (now in remission), and the development of polyneuropathy. The examiner was to consider and discuss all pertinent lay and medical evidence of record, to include the Veteran's contentions that he self-medicated his PTSD symptoms through the use of alcohol, which, in turn resulted in the development of his polyneuropathy. On remand, the Veteran underwent a VA examination in October 2012; however, the VA examiner provided the following opinion: "PTSD does not cause or aggravate polyneuropathy, nor does it cause alcoholism". The examiner did not offer any rationale as to the conclusion. Furthermore, there is no indication that the examiner considered the pertinent lay and medical evidence of record, to include the Veteran's lay statements. Thus, the Board finds this opinion inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). See also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Because the record does not include an adequate medical opinion that includes a more thorough discussion, the Board finds that additional corrective action to obtain the required medical opinion is necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the RO should forward the claims file to the individual who conducted the prior examination for a supplemental medical opinion. If the prior examiner is unavailable, the RO should forward the claims file to an appropriate VA physician to obtain the requested opinion. Relevant to the issues of TDIU and higher initial rating for PTSD, the Board points out that, as any decision with respect to the claim for service connection may affect the Veteran's claims for a TDIU or (in light of points raised in the Joint Motion), the initial rating for PTSD, these claims are inextricably intertwined with the claim for service connection. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU or initial PTSD rating claims, at this juncture, would be premature. Hence, a remand of these matters is warranted, as well. Prior to obtaining further medical opinion, the RO should obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes outpatient treatment records from the West Haven VA Medical Center (VAMC) dated through August 2013; however, more recent records from that facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the West Haven VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since August 2013. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claims should include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED to the RO, for the following action: 1. Obtain from the West Haven VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since August 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Associate all records/responses received with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims for service connection for polyneuropathy of the upper and lower extremities; for a TDIU, and for a higher initial rating for PTSD. Explain the type of evidence that is the Veteran's ultimate responsibility to submit. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, to the examiner who conducted the October 2012 examination for a comprehensive review of the record and an addendum opinion as to the nature and etiology of current polyneuropathy. If this examiner is no longer available, the claims file should be forwarded to an appropriate VA physician to obtain such an opinion. The physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any current polyneuropathy of the upper and lower extremities (a) was caused, or (b) is aggravated (worsened beyond the natural progression) by his service-connected PTSD. In rendering the requested opinion, the examiner should specifically address the relationship, if any, between the Veteran's PTSD, his alcoholism (now in remission), and the development of polyneuropathy. In doing so, the examiner must consider and discuss all pertinent lay and medical evidence of record-to include the Veteran's contentions that he self-medicated his PTSD symptoms through use of alcohol, which, in turn resulted in the development of his polyneuropathy. Regarding the latter point, the examiner should specifically address whether the Veteran's alcoholism (now in remission), is/was a symptom of the service-connected PTSD. The physician should set forth complete rationale for the conclusions reached, in a printed (typewritten) report. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).