Citation Nr: 1629165 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 03-22 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), major depression and an anxiety disorder. 2. Entitlement to an evaluation in excess of 10 percent for hearing loss. 3. Entitlement to an evaluation in excess of 10 percent for a right arm disability classified as a right upper arm strain muscle group V (previously claimed as a scar from right arm injury). 4. Entitlement to an evaluation in excess of 10 percent for a right arm disability classified as a right shoulder impingement syndrome (previously claimed as right upper arm injury). REPRESENTATION Appellant represented by: Michigan Veterans Affairs Agency WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service in the United States Army from August 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied entitlement to service connection for a psychiatric disorder classified as PTSD. The Veteran appeared at a Travel Board Hearing in December 2005 in regards to the psychiatric claim. A transcript is associated with the claims folder. The psychiatric claim was remanded in February 2006, March 2007, and May 2009 for evidentiary and remedial development. In June 2010, the Board denied the Veteran's psychiatric claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a February 2012 Memorandum Decision and Order vacated the Board's June 2010 decision and remanded the claim for compliance with the terms of the Order. Subsequently the Board remanded this matter again in April 2013 to ensure compliance with Court's order. The Board expanded the scope of the psychiatric claim to include psychiatric disorders other than PTSD (as set forth in the issues above) pursuant to the Court decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this April 2013 decision, the Board also noted that the Veteran had filed a notice of disagreement (NOD) with an October 2011 decision that had increased the evaluation of the Veteran's service-connected hearing loss to 10 percent disabling and continued a 10 percent evaluation for right upper arm strain, muscle group V (previously claimed as scar from right arm injury). This NOD was construed from a March 2011 statement re-sent by the Veteran in April 2012 that requested a reevaluation of his hearing loss and right arm condition. The Board in its April 2013 remand interpreted this as a disagreement with evaluations assigned in the October 2011 rating decision regarding the hearing loss and right upper arm muscle strain and directed the RO to issue the Veteran a statement of the case (SOC) that addressed these issues. 38 C.F.R. § 20.201, 20.300-301; see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Thereafter in December 2015 the RO sent him an SOC which not only addressed the issues of increased ratings for service-connected hearing loss to 10 percent disabling and for right upper arm strain, muscle group V, but broadly construed the Veteran's NOD regarding the right upper extremity to also encompass the 10 percent rating assigned for a right shoulder impingement syndrome. The Veteran timely submitted a VA Form I-9 in January 2016 that expressed a desire to appeal all the issues listed in the SOC. Therefore these issues have been added to the enumerated issues on appeal and are noted to have been certified by the RO in February 2016. The Board's April 2013 decision also referred a pending claim (via an August 2010 Report of General Information), for a dental condition. As no action appears to have been taken regarding this matter, this is again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially the Board notes that in regards to the perfected issues of entitlement to increased ratings for bilateral hearing loss and right upper extremity disabilities classified as a right upper arm strain muscle group V and a right shoulder impingement syndrome; the Veteran is noted to have requested a videoconference hearing before a member of the Board in his January 2016 VA Form I-9. None has been scheduled, although a February 1, 2016 letter did advise him that he would be placed on a waiting list for a videoconference hearing. Pursuant to 38 C.F.R. § 20.700 (2015), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2014) and 38 C.F.R. §§ 20.703, 20.704 (2015) (pertaining specifically to hearings before the Board). Accordingly, a remand of this matter for the AOJ to schedule the requested hearing is warranted. Regarding the Veteran's claimed psychiatric disorder, this had been remanded in April 2013 to afford compliance with the Court February 2012 Memorandum Decision and Order, with a request that included attempting to locate treatment records from the Ann Arbor VA Medical Center dating from 1970 and obtaining a VA examination to ascertain the nature and etiology of the Veteran's psychiatric disorder. The Ann Arbor VAMC records dating back to 1970 were confirmed to be unavailable by the RO and an August 2013 VA mental disorders examination found that the criteria for a PTSD diagnosis were not met and diagnosed anxiety disorder. The examiner determined that this diagnosed disorder is less than likely as not caused by or a result of his active military service or any incident therein. The examiner, however also described the Veteran as having psychiatric symptoms including anxiety, irritability and angry outbursts-long standing and dating back to childhood. See opinion section of August 20, 2013 VA examination at pages 8-9. The Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). The Veteran's service treatment records include an enlistment medical examination with report of medical history conducted in August 1963. There are no complaints or findings suggestive of psychiatric disability on this entrance examination and the accompanying report of medical history. The Board finds that, because there is no medical evidence of preexisting psychiatric disability at service entrance in August 1963, the Veteran is presumed sound at entrance. To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2002; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Therefore, the Board finds that an addendum opinion should be obtained to include a determination as to whether the Veteran's diagnosed psychiatric disability clearly and unmistakably existed prior to active service and was clearly and unmistakably not aggravated by active service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a Board videoconference hearing in regards to the issues of entitlement to increased ratings for bilateral hearing loss; a right arm disability classified as a right upper arm strain muscle group V and for a right shoulder impingement syndrome. 2. After conducting any additional development deemed appropriate, return the electronic claims file to the examiner who conducted the August 2013 VA psychiatric disorders examination. If the examiner is no longer available, forward the file to the appropriate specialist. After reviewing the record and examining the Veteran, the examiner must offer the following opinions: (a) Regarding the anxiety disorder diagnosed at the August 2013 examination, does the evidence of record clearly and unmistakably (undebatably) show that such disability existed prior to such service? (b) If so, does the evidence of record clearly and unmistakably show that the pre-existing disability did not undergo a worsening (aggravation) during such service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. A rationale must be provided for any opinion expressed. If the examiner is unable to provide an opinion without resort to speculation, he or she must explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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 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). _________________________________________________ JAMES L. MARCH 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).