Citation Nr: 0001801 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-03 588A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased original disability rating for service-connected post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from December 1967 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama, which granted a claim by the veteran seeking entitlement to service connection for PTSD, assigning a 30 percent disability rating, and which denied a claim seeking entitlement to service connection for back and bilateral knee disorders. The Board notes that the veteran submitted a claim in August 1995 seeking entitlement to service connection for a skin disorder, claimed as secondary to Agent Orange exposure. The RO has rendered no decision in regard to that claim. Therefore, that issue is referred back to the RO for all appropriate action. REMAND Initially, the Board finds that the veteran's claim for an increased original disability rating for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Here, the veteran's claim is well grounded because he is service-connected for PTSD and has appealed the initial grant of less-than-complete benefits. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995) (where a veteran appeals the RO's initial assignment of a rating, for a service-connected disorder, that constitutes less than a complete grant of benefits permitted under the rating schedule, he has established a well-grounded claim). Because the veteran's PTSD claim is well-grounded, VA has a duty to assist him with the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). This includes a duty to obtain all pertinent medical records which have been called to its attention by the veteran and by the evidence of record. Culver v. Derwinski, 3 Vet. App. 292 (1992). Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. §§ 5103(a), 7104(a) (West 1991 & Supp. 1998); see also Epps v. Brown, 9 Vet. App. 341 (1996) (§ 5103(a) duty attaches in cases where the record references other known and existing evidence that might pertain to the claim under consideration). Here, the veteran, in his November 1997 Notice of Disagreement, indicated that there were medical treatment records available from the "PTSD/PCT Treatment Program," at the VA Medical Center (VAMC) in Tuscaloosa, Alabama, and that those records were not considered by the RO in its decision granting the veteran a 30 percent rating for PTSD. He requested that the RO obtain those records and reconsider its rating decision. However, no such records are currently in the claims file, and the claims file shows no attempt by the RO to obtain said records. The Board recognizes that the veteran, on his own initiative, submitted VA outpatient records from the VAMC in Tuscaloosa, Alabama, dated from April 1997 to January 1998. However, these do not pertain to treatment for PTSD or any other psychiatric disorder, and there is no indication that these records came from the PTSD/PCT program at that facility. Therefore, the Board finds that VA records pertinent to the veteran's PTSD claim may be available, but not of record. As a result, an attempt should be made by the RO to obtain any and all such records. This is necessary in order to provide a record upon which a fair, equitable, and procedurally correct decision on the claim can be made. 38 C.F.R. § 3.159 (1999). In regard to VA examination of the veteran's PTSD, the Board notes that he was provided such an examination in August 1997, after submitting his claim for entitlement to service connection for PTSD. Subsequently, in his March 1998 Substantive Appeal, VA Form 9, the veteran requested re- examination of his PTSD by VA. The claims file shows that VA PTSD examination was scheduled, but that the veteran called to cancel that appointment and not to reschedule it. Most recently, the veteran's accredited representative, in its October 1999 informal brief presentation, argued that the veteran should be rescheduled for VA examination of his PTSD because there was "insufficient notice" given to him about the consequences of a "failure to report" for the examination. The Board disagrees. First, the Board finds that the veteran did not "fail to report" for said examination; he called and expressly canceled the appointment. This indicates that he did not wish to appear for it, rather than simply did not know of it. Second, the veteran was provided the regulations pertaining to the consequences of failing to appear for VA examination in the RO's February 1999 Supplemental Statement of the Case. VA examination may be rescheduled upon a showing of "good cause" for failure to appear for a prior examination. 38 C.F.R. § 3.655 (1999). No such good cause has been shown. Alternatively, reexamination is authorized if the medical evidence is otherwise inadequate, 38 C.F.R. § 3.326; if it appears that a veteran's service-connected disability has materially changed, 38 C.F.R. § 3.327; or if a prior VA examination is inadequate, 38 C.F.R. § 4.70 (1999). However, in anticipation of the time that will elapse before the case is returned to the Board, the issue regarding an increased evaluation for the veteran's service-connected PTSD cannot be properly considered without current examination findings relative to the degree of severity of the disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 4.2 (1999). In regard to the veteran's claim for entitlement to service connection for back and bilateral knee disorders, the Board finds that a Notice of Disagreement to the RO's September 1997 denial of that claim was submitted by the veteran in March 1998. In a March 1998 Statement in Support of Claim, VA Form 21-4138, the veteran specifically stated that he disagreed with the September 1997 rating decision and that he wished to appeal the denial of service connection for back and bilateral knee disorders. The pertinent law and regulations provide that "[a]ppellate review will be initiated by a Notice of Disagreement and completed by a Substantive Appeal after a Statement of the Case is furnished as prescribed in this section." 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999); see also 38 C.F.R. § 20.201 (1999) (requirements for notices of disagreement). The Notice of Disagreement must be filed with the RO from which the claimant received notice of the determination being appealed within one year from the date of mailing of the notice of the result of the initial review or determination. 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. §§ 20.300, 20.302(a) (1999). The Notice of Disagreement can be filed by the veteran or his or her representative if a proper Power of Attorney as to the representative is of record. 38 C.F.R. § 20.301 (1999). Thereafter, upon the timely receipt of a Notice of Disagreement, the RO must prepare and furnish to the claimant a Statement of the Case unless the benefit being sought is granted in full. 38 U.S.C.A. § 7105(d)(1) (West 1991); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Here, no Statement of the Case on the issue of entitlement to service connection for back and bilateral knee disorders has been provided to the veteran. Consequently, this matter must be remanded in order for the veteran to be assured of full procedural due process. See 38 C.F.R. § 19.9 (1999) ("If further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision," the Board is required to remand the case back to the agency of original jurisdiction.) (emphasis added). The Board notes that the claims file contains a November 1998 rating decision, classifying the veteran's back and bilateral knee claim as involving the issue of whether new and material evidence had been submitted to reopen a claim for service connection. That is inaccurate. As stated above, the veteran properly and timely appealed the RO's initial denial of entitlement to service connection for those disorders. Therefore, his appeal concerns the basic issue of entitlement to service connection for back and bilateral knee disorders. The Board makes no finding as to whether or not the veteran has presented well grounded claims for service connection for back and bilateral knee disorders, invoking a duty to assist. See 38 U.S.C.A. § 5107(a) (West 1991). Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should attempt to obtain any and all medical treatment records pertaining to the veteran's PTSD at the PTSD/PCT Treatment Program, at the VA Medical Center in Tuscaloosa, Alabama. If attempts are unsuccessful, the veteran should be notified of this fact and provided an opportunity to obtain and submit such records himself. In addition, he should be requested to identify all sources of recent treatment received for his service-connected PTSD, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source. Copies of the medical records from all sources he identifies, including VA records, (not already in the claims folder) should then be requested. All medical records obtained should be added to the claims folder. 2. The veteran should be afforded a VA psychiatric examination to determine the severity of his service-connected PTSD. The claims folder must be made available to the examiner prior to the examination so that he or she may review pertinent aspects of the veteran's history. All clinical findings should be reported in detail. Such tests as the examining physician deems necessary should be performed. The examiner should identify diagnostically all symptoms and clinical findings which are manifestations of the veteran's service-connected PTSD. Specifically, the examiner is to determine the impairment in the veteran's ability to perform self-care and to converse. Other factors to be evaluated include the presence of a depressed mood; anxiety; suspiciousness; chronic sleep impairment; memory loss; flattened affect; circumstantial, circumlocutory, or stereotyped speech; existence and frequency of panic attacks; difficulty understanding complex commands; impaired judgment; impaired abstract thinking; and difficulty in establishing and maintaining effective work and social relationships. If manifested, the severity of each symptom should be explained. Overall, the examiner is to render an opinion as to the overall social and occupational impairment caused solely by the veteran's PTSD. Based upon a review of the record and the examination, the examiner should provide a Global Assessment of Functioning (GAF) score provided in the Diagnostic and Statistical Manual for Mental Disabilities, indicating the level of impairment produced by the service- connected PTSD. It is imperative that the examiner also provide a definition of the GAF score for purposes of due process under Thurber v. Brown, 5 Vet. App. 119 (1993). 3. After the above actions have been completed, the RO should review the veteran's claim of entitlement to an increased rating for PTSD, with consideration of all the evidence of record. If the determination remains unfavorable to the veteran in any way, he and his representative should be furnished a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which includes a summary of additional evidence submitted and any additional applicable laws and regulations. This document should include detailed reasons and bases for the decisions reached. The veteran and his representative should be afforded the opportunity to respond thereto. 4. The veteran and his accredited representative should also be issued a Statement of the Case with respect to the claim of entitlement to service connection for back and bilateral knee disorders. The veteran should be advised that the RO's November 1998 rating decision, classifying the issue as involving the issue of new and material evidence to reopen his claim, was erroneous. The veteran should also be advised that he may perfect his appeal of this issue by filing a substantive appeal within 60 days of the issuance of the Statement of the Case, see 38 C.F.R. § 20.302(b) (1999), or alternatively, within the time proscribed by law to perfect an appeal to the Board. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case. The purpose of this REMAND is to fulfill VA's duty to assist and to insure procedural due process. The veteran needs to take no action until so informed. The appellant 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the veteran's appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending any portion of the requested VA examination may result in an adverse determination, in whole or in part. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. A. BRYANT 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).