Citation Nr: 1624765 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 11-24 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a low back disability. 3. Entitlement to an initial disability rating in excess of 10 percent prior to April 1, 2013, and in excess of 30 percent as of April 1, 2013, for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty for training from January 1972 to May 1972 and on active duty from January 1991 to May 1991 and from April 2003 to April 2004 with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2010 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2016, the Veteran presented sworn testimony during a video conference hearing in Columbia, South Carolina, which was chaired by the undersigned. A transcript of that hearing has been associated with the claims file. In a November 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran's PTSD to 30 percent effective April 1, 2013. As the AOJ did not assign the maximum disability rating possible for the entire period on appeal, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The issue has been recharacterized above. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required. REMAND With regard to the service connection claims, the Veteran identified possible outstanding private treatment records at his March 2016 Board hearing. Specifically, he indicated that he received private physical therapy for his back within a year of discharge from active duty. He also referenced treatment by Dr. L and treatment as a military retiree at the Charleston Air Force Base. These records must be obtained on remand. In addition, while statements from the Charleston Vet Center have been received, copies of the mental health treatment notes are not yet of record. Further, the Veteran has not been afforded a VA examination and opinion for either of his service connection claims, despite lay testimony of incurrence in service (low back) or within one year of discharge (hypertension), current disabilities, and the Veteran's assertions that the inservice/within one year of discharge events are related to his current disability. On remand, the Veteran must also be afforded VA examinations and opinions for his service connection claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the increased rating claim, the Veteran testified at his Board hearing that this disability had worsened since his last VA examination in 2013 and identified specific symptoms not previously noted. As such, this claim must also be remanded for a new VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a letter asking him to identify and provide a signed release of information (VA Form 21-4142) for any outstanding records relating to his hypertension, low back disability, and PTSD. The Board is particularly interested in records relating to hypertension from Dr. G., records from Dr. L, any additional records pertaining to his low back or hypertension from Dr. W., physical therapy treatment for his low back, and any private psychiatric treatment records. See Board hearing transcript. If he returns a signed release of information, attempt to obtain and associate with the claims file any private treatment records. All attempts to obtain these records should be documented in the claims file. 2. Copies of all outstanding VA treatment records should be obtained and added to VBMS. 3. While statements from the Charleston Vet Center are of record, the treatment records have not been obtained. Please attempt to obtain the mental health treatment records from the Charleston Vet Center dating from February 2009. 4. Obtain all outstanding records of treatment as a military retiree from the Charleston Air Force Base. 5. If after making reasonable efforts to obtain non-Federal records or after continued efforts to obtain Federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the appellant must be notified in accordance with 38 C.F.R. § 3.159 (2015). 6. Thereafter, the Veteran should be scheduled for VA examinations in order to determine the nature and etiology of his hypertension and low back disability and the current nature and severity of his service-connected PTSD. The claims folder must be made available to the examiners for review in connection with the examination. The examination reports must reflect that such a review was conducted. With regard to the Veteran's hypertension and low back disability, the examiner(s) must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension and/or low back disability had their initial onset during active service from April 2003 to April 2004 or were otherwise related to that period of service, which included service in Iraq from November 2003 to February 2004. * With regard to hypertension, the examiner should address the Veteran's blood pressure reading of 136/82 in March 2004. * With regard to the low back disability, the examiner should address the Veteran's claims that heavy lifting in service caused his current disability. With regard to the Veteran's PTSD, the examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected PTSD. S/he must also distinguish, to the extent possible, between psychiatric symptoms attributable to the Veteran's service-connected PTSD and those attributable to nonservice-connected disorder(s). The examiner is also requested, if possible, to determine and specifically list all symptoms and the levels of social and occupational impairment experienced by the Veteran that are attributable solely to his PTSD. A rationale for all requested opinions shall be provided. If the examiners cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation stating why this is so. In so doing, the examiners 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(s). 7. After completing the above actions, the Veteran's claims should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ S. S. TOTH 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).