Citation Nr: 0005333 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-11 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for chronic lower back pain and nerve damage in the left leg as a result of treatment at a VA facility. 2. Entitlement to service connection for hearing loss. 3. Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder (PTSD), the initial evaluation assigned. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran served on active duty from March 1967 to January 1969. This appeal arises from February 1996, November 1996, and September 1997 decisions of the Los Angles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a RO hearing in October 1997 and a Travel Board hearing in November 1999. REMAND The Board believes that additional development of the medical evidence should be undertaken prior to a final disposition of the appeal. In this regard, the Board notes that in a November 1999 letter, the veteran's VA psychiatrist indicated that the veteran was not capable of any form of gainful employment. However, it was unclear from the letter to what degree the veteran's PTSD, alone, contributed to the psychiatrist's assessment. Accordingly, the Board finds that an opinion should be obtained describing the relationship between the veteran's PTSD and his employment difficulties. A preliminary review of the record also raises a question as to whether all pertinent VA medical records have been associated with the claims file and reviewed by the RO. At his November 1999 Travel Board hearing, the veteran stated that he had received outpatient treatment for his PTSD from the VAMC at 351 East Temple Street in Los Angles, California. However, the outpatient treatment records do not appear to be associated with the file. The VA's statutory duty to assist the veteran includes the obligation to obtain pertinent treatment records, the existence of which has been called to its attention. Murphy v. Derwinski, 1 Vet. App. 78 (1990). As for the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for chronic lower back pain, and entitlement to service connection for hearing loss, the Board observes that the veteran has requested personal hearings on these matters. In his June 1998 substantive appeal, the veteran requested a hearing before a member of the Board. In a November 1998 substantive appeal, the veteran indicated that he wanted a "local level hearing." The Board notes that these two issue were not raised or discussed at the November 1999 travel board hearing before the undersigned member. Whether those two issues were merely overlooked by the presiding Board Member and both the veteran and his representative is not entirely clear. Nevertheless, neither the representative nor the veteran suggested or indicated he wanted to discuss anything other than the PTSD issue. The undersigned has reviewed the correspondence from the representative and the veteran. There is reason to believe that the veteran no longer wished to have a hearing on the two issues. The Board concludes that he definitely waived or withdrew his earlier request for a travel board hearing on these two issues. However, the Board would like to avoid a possible due process problem and receive clarification on the veteran's wishes in the matter of a hearing before a Hearing Officer at the RO. There is one other matter in the veteran's case that should be addressed. In an October 1998 granted the veteran nonservice connected pension benefits effective from November 1, 1997. The veteran was notified of the decision in December 1998. By letter dated May 5, 1999, his representative submitted a notice of disagreement with the effective date of November 1, 1997. Therefore, the record shows that the veteran has effectively initiated an appeal from the above-cited rating decisions regarding assignment of an earlier effective date for his nonservice-connected pension. Appropriate action, including issuance of a statement of the case, is therefore necessary with regard to this issue. 38 C.F.R. § 19.26. Although the Board in the past has referred such matters to the RO for appropriate action, the United States Court of Appeals for Veterans Claims (Court) has now made it clear that the proper course of action is to remand the matter to the RO. Manlincon v. West, 12. Vet. App. 238 (1999). In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. All pertinent VA medical records not already in the claims file, including the outpatient treatment records for the veteran's PTSD mentioned earlier in this decision, should be made of record. 2. The RO should then furnish the claims file to the VA psychiatrist who authored the November 1999 letter and request that he review the file and his letter and then offer an opinion as to whether and to what degree the veteran's PTSD, alone, renders him incapable of obtaining and maintaining gainful employment. The VA psychiatrist should also offer an opinion as to whether a relationship exists between the veteran's substance abuse problem and his PTSD. All opinions should be supported by a written rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the VA psychiatrist who authored the November 1999 letter is no longer available, the RO should request another qualified physician to review the claims file and provide the requested opinions. If necessary, additional VA psychiatric examination should be undertaken. 3. The RO should contact the veteran and clarify whether he desires a hearing at the RO before a Hearing Officer as to the issues involving § 1151 benefits and service connection for a hearing loss. If he does, the hearing should be scheduled and the veteran and his representative should be notified of the date and time of such hearing. 4. Thereafter, the RO should again review the record. If the benefits sought on appeal remain denied, the veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. As for the issue of entitlement to an earlier effective date for the veteran's nonservice-connected pension, the RO should issue a statement of the case and advise the veteran and his representative of the need to file a timely substantive appeal if the veteran wishes to complete an appeal from that determination. The purpose of this remand is to assist the veteran and to obtain clarifying medical information. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). BRUCE KANNEE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).