Citation Nr: 1601936 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 09-46 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for shell fragment wound residuals of the left forearm. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to a compensable rating for service-connected hearing loss. 5. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 6. Entitlement to a compensable rating for peripheral neuropathy of the right lower extremity. 7. Entitlement to a compensable rating for peripheral neuropathy of the left lower extremity. 8. Entitlement to service connection for heart disease. 9. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to November 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2015, issues 1-5 were remanded to afford the Veteran a hearing. The Veteran provided testimony at a hearing before the undersigned in July 2015. A transcript of this hearing is of record. For the reasons addressed in the REMAND portion of the decision below, the Veteran's claims are REMANDED to the Agency of Original Jurisdiction (AOJ). As an additional matter, the Board notes that the Veteran has raised a claim of entitlement to an increased rating for his service-connected diabetes mellitus by an October 2015 statement. This claim has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). REMAND The Veteran has essentially contended that he sustained a shell fragment wound to his left forearm while engaged in combat during his active service in the Republic of Vietnam, and has provided details thereof in statements and his July 2015 hearing testimony. The Board acknowledges that the Veteran's service treatment records contain no references to a shell fragment wound of the left forearm to include his November 1969 separation examination. However, the Veteran is competent, as a lay person, to describe a shell fragment wound to the left forearm. Moreover, the record confirms he engaged in combat while on active duty in the Republic of Vietnam as exemplified, in part, by the fact he received the Combat Infantryman Badge. An October 2008 VA muscles examination concluded, in pertinent part, that "[b]y history, the [Veteran] probably had a small shrapnel wound." The examiner indicated that he would take an x-ray to see if there were any residuals of a shell fragment. However, it does not appear that such x-ray was undertaken. As it is unclear whether the Veteran currently has any residuals of a shell fragment wound to his left forearm, a remand is necessary. See Degmetich, 104 F. 3d at 1332; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)(Service connection requires evidence that establishes that the veteran currently has the claimed disability.) The Veteran has essentially contended, to include at his July 2015 hearing, that he sustained neck and back injuries while engaged in combat during his active service and has had recurrent symptoms since that time. Granted, there is no indication of any such injuries in the service treatment records; and his neck and spine were clinically evaluated as normal on his November 1969 separation examination. Nevertheless, as discussed above, the record reflects the Veteran engaged in combat while on active duty and is entitled to the benefit of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) in adjudication of this case to include his account of such in-service injuries. The Board does note, however, that the exact nature and etiology of the claimed cervical spine and low back disorders is not clear from the evidence of record; nor does it appear the Veteran been accorded a VA examination regarding these claims. Consequently, the Board concludes this case should be remanded for such an examination and opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board observes that the Veteran was accorded VA examinations to evaluate his service-connected hearing loss and PTSD, with the most recent being in March 2011. Further, the record reflects he was scheduled for new examinations of these disabilities in December 2013, but did not report for these examinations. The Board acknowledges that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. Further, the provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Board also observes, however, that the notification for the scheduled December 2013 VA examinations does not appear to be of record. A December 2013 Report of General Information is of record which reflects the Veteran contacted VA about re-scheduling these examinations; and a handwritten note of "no exam for such." As such, it indicates there may have been some confusion as to the scheduling of these examinations to include whether the Veteran had good cause for his failure to report. At a minimum, it indicates the Veteran was aware of such examinations, and that he was willing to report for such. Therefore, the Board concludes that he should be provided with a new opportunity to report for such examinations, particularly as his statements and hearing testimony intimate both his hearing loss and PTSD have increased in severity since the last examinations in March 2011. See VAOPGCPREC 11-95 (April 7, 1995) (When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In regard to the issues of entitlement to compensable ratings for peripheral neuropathy of the lower extremities, and service connection for heart disease, the Board notes the record reflects the Veteran submitted a timely Notice of Disagreement (NOD) to the November 2014 rating decision that addressed these claims. However, the record available for the Board's review does not reflect a Statement of the Case (SOC) has, as yet, been promulgated on these issues. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to direct that a SOC be issued. (Emphasis added). In an October 2015 claim, the Veteran sought TDIU in connection with his service-connected diabetes mellitus and PTSD. As the Veteran is claiming TDIU in connection with at least one of the disabilities on appeal, a remand for the RO to address the claim initially is necessary. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a Statement of the Case (SOC) as to the issues of entitlement to a compensable rating for peripheral neuropathy of the right lower extremity, a compensable rating for peripheral neuropathy of the left lower extremity, and service connection for heart disease. The Veteran should be advised of the time period in which to perfect an appeal as to these issues. 2. Request the names and addresses of all medical care providers who have treated the Veteran for his neck, low back, hearing loss, and PTSD since July 2014. Even if the Veteran does not respond, determine if there are any VA treatment records for the pertinent period. After securing any necessary release, obtain those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service neck and low back symptomatology; as well as the nature, extent and severity of his hearing loss and PTSD symptoms and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to determine if there are any residuals of a shell fragment wound to his left arm. A complete rationale for any opinion expressed should be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 5. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to determine the current nature and etiology of his claimed cervical spine and low back disorders. The claims folder should be made available to the examiner for review before the examination. For any cervical spine and/or low back disorder found to be present, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that it was incurred in or otherwise the result of his active service. The examiner should be aware that the Veteran's account of sustaining neck and low back injuries while engaged in combat is deemed to be credible in accord with 38 U.S.C.A. § 1154(b). In particular, the Veteran contends that he injured his neck in a jeep accident and his back after jumping from a helicopter. A complete rationale for any opinion expressed should be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. The Veteran should also be afforded new examination(s) to evaluate the current nature and severity of his service-connected hearing loss and PTSD. The claims folder should be made available to the examiner(s) for review before the examination(s). With respect to the hearing loss, in addition to objective test results, the examiner should fully describe the functional effects caused by the hearing disability in his or her final report and the impact of such on the Veteran's employability. The examiner should also address whether, and to what extent, his hearing loss decreases his ability to communicate effectively with other people. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). 7. After completing any additional development deemed necessary, readjudicate the claims on appeal in light of any additional evidence added to the records assembled for appellate review. In addition, the RO should address the intertwined claim for TDIU. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC on these issues in July 2014. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs