Citation Nr: 1631943 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 11-21 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a back disorder. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Krunic, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2011, February 2011, and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2012, the RO increased the evaluation of PTSD from 30 percent to 50 percent, effective from June 2, 2010. However, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. The Board observes that in a June 2015 rating decision, the RO granted service connection for prostate cancer and assigned a 100 percent evaluation, effective from December 16, 2014. In that decision, the RO notified the Veteran that since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination. Under these circumstances, the Veteran's claim of entitlement to TDIU is not rendered moot and remains in appellate status. The Board notes that hearings were held before a Decision Review Officer (DRO) at the RO in June 2011 and September 2013, and transcripts of the proceedings are of record. The Board also notes that in August 2014, the Veteran withdrew his request for a hearing before the Board; he has not submitted another request for a hearing since that time. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2015). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Initially, the Board notes additional VA treatment records have been received, which were not previously considered by the AOJ. A supplemental statement of the case (SSOC) was not issued, and the Veteran did not submit a waiver of the AOJ's initial consideration of that evidence. Thus, the Board finds that a remand is required for the AOJ to issue a supplemental statement of the case. See 38 C.F.R. §§ 19.31, 19.38 (requiring issuance of SSOC following Board remand unless Board specifies otherwise or purpose of remand is to assemble records previously considered and discussed in prior SSOC); 20.1304. The Veteran was most recently afforded a VA examination in connection with his claim for an increased evaluation for PTSD in January 2013. However, since that time, the evidence of record suggests a possible worsening of his condition. Notably, a May 2015 VA treatment record shows that the Veteran's PTSD symptoms such as nightmares, intrusive thoughts, hypervigilance, exaggerated startle response and social avoidance remain elevated. Furthermore, the Veteran reported brief/fleeting thoughts of suicidal ideation and his mood was noted to be severely depressed. A VA treatment record dated July 2015 documented a worsening of PTSD symptoms; the Veteran was also noted to have a mental health safety plan for suicidal thoughts. Moreover, a March 2016 statement from Dr. M.H. (initials used to protect privacy) reports that the Veteran should remain out of work due to his current mental health condition in order to pursue treatment. As there is evidence suggesting a possible worsening of symptoms since the January 2013 VA examination, the Board finds that an additional VA examination is warranted to ascertain the current severity and manifestations of the Veteran's service-connected PTSD. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (April 7, 1995). Regarding the claim of entitlement to service connection for a back disorder, the Veteran was afforded a VA examination in November 2012. The examiner opined that the Veteran's current thoracolumbar disorder was not related to service, finding that all of the in-service entries related to the back indicated isolated and acute incidents without residuals. She also stated that the Veteran's degenerative disc disease was the result of the aging process; however, she provided no rationale for this conclusion. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (noting that "most of the probative value of a medical opinion comes from its reasoning"). It is also unclear if the examiner considered the complete history of the development of the Veteran's back disorder, to include his reports as to the in-service onset of symptoms and ongoing symptoms since service. See e.g., June 2011 DRO hearing transcript at 2-7; September 2013 DRO hearing transcript at 4-7. Thus, the Board finds that an additional examination and medical opinion is warranted for the purpose of ascertaining the nature and etiology of the Veteran's low back disorder in this case. Finally, the issue of entitlement to TDIU is not ripe for review at this time, as it is inextricably intertwined with the issue of entitlement to an increased evaluation for PTSD and service connection for a back disorder. See Henderson v. West, 12 Vet.App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Hence, that matter is remanded to the AOJ as well. 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 his PTSD and back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file, to include records from the Charleston VA Medical Center. 2. 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. 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, including the frequency, severity, and duration of such symptomatology. The findings of the examiner should also 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. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available for review. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back 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 lay assertions. The examiner should identify all current low back disorders that may be present. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's current low back disorder (a 50 percent or greater probability) manifested in service or is otherwise causally or etiologically related to his military service, including any symptomatology and injuries therein, such as falling in a ditch. The examiner should elicit a history from the Veteran, to include the back injuries sustained in service and the onset of his back symptoms. He or she should also consider the service treatment records documenting his low back complaints, including the records showing that he fell in a ditch in September 1969 and wounded his back in July 1969 at which time he was assessed as having lumbar lordosis and muscle sprain. 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 also discuss medically known or theoretical causes of any current back disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to some other cause. (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. 4. After completing the above actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence received since the last supplemental statement of the case. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). This claim 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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 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).