Citation Nr: 1618326 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 09-46 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating for service-connected posttraumatic stress disorder (PTSD) in excess of 10 percent prior to February 8, 2011, and 30 percent thereafter. 2. Entitlement to service connection for a pulmonary disability to include chronic obstructive pulmonary disorder (COPD) and asthma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2014, the Veteran presented sworn testimony during a personal hearing in Washington D.C., which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims file. In an August 2014 Board decision, the claims were remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in a February 2015 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. The Board is cognizant that the Veteran's case has been in adjudicative status for years and that it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his pending claims. Initially, the Board notes that the Veteran recently submitted decisional documents demonstrating that he has been granted disability benefits from the Social Security Administration (SSA). These records are potentially pertinent to the appeal and should be obtained on remand. Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Also, upon remand, ongoing medical records should be obtained. In addition, this matter was remanded in August 2014 in order to afford the Veteran VA examinations as to his increased rating and service connection claims. The Board recognizes that the Veteran failed to appear for three scheduled VA examinations in October 2014. See 38 C.F.R. § 3.655(2015). However, as this matter is being remanded for other reasons, the Board finds that the Veteran should again be afforded an additional opportunity to appear for said examinations. As such, upon remand, the Veteran should be scheduled for a current VA examination to determine the current severity of his service-connected PTSD. He should also be scheduled for a VA examination to determine the current diagnosis and etiology of the claimed pulmonary disability. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, the AOJ shall procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in records of the Veteran's VA treatment dated from February 2014. All such available documents must be associated with the claims file. 2. Obtain all records pertaining to the Veteran's claim for disability benefits with the Social Security Administration. 3. Thereafter, schedule the Veteran for a VA psychiatric examination to determine the severity of his PTSD. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. 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 PTSD. The results of any such testing and studies should be included in the examination report. The examiner should provide a detailed account of all manifestations of the service-connected PTSD found to be present. Additionally, the examiner should discuss all occupational impact attributable to PTSD. A complete rationale should be given for all opinions and conclusions expressed. 4. Schedule the Veteran for a VA examination to assess the severity and etiology of any currently diagnosed pulmonary disability (to include asthma and COPD). The Veteran's claims file must be made available to the examiner for review in conjunction with the examination. The examiner should review, note, and discuss the Veteran's statements in support of his claim, and his service treatment records. In consideration of these and any other evidence or factors deemed relevant, the examiner should address the following questions: A. Is at least as likely as not that the Veteran has a current diagnosis of asthma, COPD, or any other pulmonary disability? B. If so, whether it is at least as likely as not that any current pulmonary disability (to include asthma and COPD) had its onset in service or is otherwise etiologically-related to service. Again, the Board notes that asthma was not diagnosed upon entry by a medical examiner, and the Veteran's report of asthma prior to service is not sufficient in and of itself to establish such a diagnosis. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. The Veteran's overall credibility should be addressed if possible (but not required). 5. The AOJ should then readjudicate the claims on appeal. If a benefit sought remains denied, the Veteran and his representative 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 that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).