Citation Nr: 0006483 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 97-28 696 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for the service- connected post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for the service- connected chip fracture residuals of the right ankle, currently evaluated as 20 percent disabling. 3. Entitlement to service connection for a gastrointestinal disorder, claimed as secondary to medication taken for service-connected conditions. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the RO. The Board notes that in the Statement of Accredited Representation in Appealed Case dated in September 1998, the veteran's representative appears to be asserting a claim of entitlement to a total rating based on individual unemployability due to service-connected disability. As this issue has not been developed for appellate review, it is referred to the RO for appropriate action. REMAND The veteran alleges that his service-connected PTSD and chip fracture of the right ankle are more severe than their current ratings indicate. The Board finds that the veteran's claims for increased ratings are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The veteran was most recently afforded a VA examination for PTSD in May 1998. At that time, the examining physician explicitly reported that the claims folder had not been evaluated and was not made available for review. The United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist the claimant in obtaining and developing facts and evidence to support his claim includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). With regard to the veteran's claim of entitlement to an increased rating for the service-connected chip fracture of the right ankle, the Board notes that any examination of musculoskeletal disability done for rating purposes must include consideration of all factors identified in 38 C.F.R. §§ 4.40, 4.45, and clinical findings must be expressed in terms of the degree of additional range-of-motion loss due to any pain on use, incoordination, weakness, fatigability, or pain during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, the most recent VA examination is inadequate for evaluation purposes because it does not include sufficient detail for rating the disability at issue and further examination should be conducted on remand. 38 C.F.R. § 4.2. In light of the above, the veteran should be afforded another VA examination in order to determine the current severity of his service-connected PTSD. Furthermore, the veteran should also be afforded an examination which should include a medical opinion as to whether the residuals of the chip fracture of the right ankle are manifested by pain with use, weakened movement, excess fatigability, incoordination or any other functionally disabling symptoms. Additionally, and most importantly, this opinion should be expressed in terms of additional range-of-motion loss beyond that already demonstrated clinically. In other words, any functional loss found, such as the pain complained of by the veteran, must be quantified as additional loss of motion. DeLuca, supra. In addition, any pertinent treatment records should be obtained for review. The veteran also contends that he suffers from a gastrointestinal disorder caused by medicine that he takes for his service-connected disabilities. In Robinette v. Brown, 8 Vet. App. 69, 77 (1995), the Court held that even prior to the submission of a well grounded claim triggering the duty to assist under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), the VA has an obligation under 38 U.S.C.A. §§ 5103(a) and 7722 to advise the appellant of the evidence necessary to complete his application for benefits. In this case, the veteran is hereby notified that preliminary review indicates that the "evidence necessary to complete the application" is medical evidence that he suffers from a gastrointestinal condition which is due to medicine that he takes for his service-connected disabilities. Thus, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should request that the veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for a gastrointestinal disorder since service and the service-connected chip fracture of the right ankle and PTSD since December 1996 and May 1998, respectively. He should also be asked to submit any medical evidence which tends to support his assertions that he has current gastrointestinal disability due to medicine that he takes for his service- connected disabilities. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. Then, the RO should schedule the veteran for a comprehensive VA examination in order to determine the current severity of the service-connected chip fracture residuals of the right ankle. All indicated tests, including x- ray studies and range of motion studies, must be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner should state whether the veteran has any objective evidence of pain or functional loss due to pain associated with the service-connected ankle disability. The examiner should be requested to provide an opinion as to the extent that pain limits the functional ability of the veteran's ankle. The examiner should also be requested to determine whether, and to what extent, the ankle exhibits weakened movement, excess fatigability, or incoordination. A complete rationale for any opinion expressed must be provided. 3. The veteran should be afforded a VA psychiatric examination to determine the current severity of the service-connected PTSD. All indicated testing should be conducted and the claims folder must be made available to the examiner for review. Based on his/her review of the case, the examiner should enter a complete multiaxial evaluation, including a score on the Global Assessment of Functioning scale of Axis V along with an explanation of the significance of the assigned score. The examiner's report should indicate that the claims file was reviewed and should describe all current psychiatric symptoms and clinical findings. All correct diagnoses should be set forth. In addition, it is requested that the examiner offer an opinion as to the degree of social and industrial inadaptability caused by the service-connected PTSD. A complete rationale for all opinions expressed must be provided. 4. After undertaking any additional development deemed appropriate, the RO should review the veteran's claims. If it is determined that the claim of entitlement to service connection for gastrointestinal disability is well grounded, the RO should undertake all appropriate development, including affording the veteran a VA medical examination. If any benefit sought on appeal is not granted to the veteran's satisfaction, then he and his representative should be issued a Supplemental Statement of the Case and afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has 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). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals