Citation Nr: 1619960 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 13-06 267A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with chronic panic disorder and traumatic brain injury. 2. Entitlement to service connection for a bilateral shoulder disorder. 3. Entitlement to service connection for a stomach/ bowel disorder. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served in the Alabama Army National Guard and had a period of active duty for training from June 2005 to December 2005 and a period of active duty from March 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the pendency of this appeal, the Board observes that the Veteran has raised the issue of entitlement to TDIU in connection with the issue of entitlement to an increased rating for service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that "a request for TDIU . . . is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities"); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (holding that the Board must address issues raised by the appellant or reasonably raised by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009). That issue is thus properly before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the appellant's case should take into account those electronic records. The Board also notes that the Veteran filed a formal claim for multiple issues in January 2016, but those issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ) and no development has taken place. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The claims file contains copies of the Veteran's service treatment records; however, it appears that these records may be incomplete. For example, there is a record of the Veteran's March 2006 entrance examination, but not of any separation examination. The Veteran has indicated that he received treatment for an abdominal disorder multiple times while on active duty. Therefore, an additional attempt should be made to obtain any outstanding records. Moreover, additional records from the Social Security Administration (SSA) were associated with the VBMS file in May 2016. Those records were not previously considered by the AOJ in the supplemental statement of the case (SSOC), and the appellant did not submit a waiver of the AOJ's initial consideration of the evidence. As such, the additional evidence must be referred to the AOJ for review and preparation of a SSOC, if a grant of the benefit sought is not made. The Board also notes that the Veteran has not been provided a VA examination in connection with his claims for service connection for a shoulder disorder and a stomach/bowel disorder. In denying those claims, the AOJ noted that there was no evidence of a shoulder, stomach, or bowel disorder in service. However, a VA treatment record dated in December 2007 noted shoulder pain and stomach discomfort three months after period of active duty, and the Veteran has asserted that his stomach discomfort had begun upon his return from deployment. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any shoulder or stomach/bowel disorder that may be present. The Board further notes that the Veteran was last afforded a VA PTSD examination in June 2011. The claims file contains extensive psychiatric treatment records since that date, including inpatient treatment. In addition, the Veteran and his representative have asserted that he is unemployable due to his service-connected PTSD, and in November 2015, a VA psychiatrist opined that the Veteran's "severe symptoms" cause him to be unable to work. Therefore, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected PTSD with chronic panic disorder and traumatic brain injury. In addition, the Board notes that the issue of entitlement to TDIU is inextricably intertwined with the other issues on appeal. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for PTSD, a shoulder disorder, and a stomach/bowel disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding, relevant VA medical records. 2. The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's National Guard unit, and any other appropriate location, to request all service treatment records. The claims file contains copies of service treatment records; however, it is unclear if these records are complete. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2) , the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The appellant should be notified of any action to be taken. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected PTSD with chronic panic disorder and traumatic brain injury. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2015), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right or left shoulder disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. He or she should specifically consider the December 2007 complaint of shoulder pain, which would have been approximately 3 months after his separation from a period of active duty. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current shoulder disorders. For each diagnosis identified, he or she should opine as to whether it is at least as likely as not that the disorder is related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2015), of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any stomach/bowel disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. He or she should specifically consider the December 2007 complaint of stomach discomfort, which would have been approximately 3 months after his separation from a period of active duty. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current stomach/bowel disorders. For each diagnosis identified, he or she should opine as to whether it is at least as likely as not that the disorder is related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2015), of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After completing the foregoing development, the AOJ should schedule the Veteran for a VA social and industrial survey (field examination) by a VA social worker or other appropriate personnel. The examiner should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. The ultimate purpose of the VA social and industrial survey is to ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work. The report should indicate how the Veteran's service-connected disabilities alone affect his employability. The report should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the claims folder. 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. 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 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). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).