Citation Nr: 0002466 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 92-02 816 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. Entitlement to an increased (compensable) evaluation for left ear hearing loss. Entitlement to a total rating for compensation purposes based on individual unemployability. Entitlement to fee-basis examinations from private sources. REPRESENTATION Appellant represented by: Jeffrey Wood, Attorney at Law ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active duty for training from November 1957 to April 1958, and active service from September 1958 to September 1963 and from January 1964 to June 1978. This appeal comes to the Board of Veterans' Appeals (Board) from October 1991 and later RO decisions that determined there was no new and material evidence to reopen claims for service connection for residuals of a right eye injury, a back disorder, a disorder manifested by multiple joint pains, and tinnitus; denied an increased evaluation for PTSD (rated 30 percent); denied an increased (compensable) evaluation for left ear hearing loss; and denied a total rating for compensation purposes based on individual unemployability. The Board remanded the case to the RO for additional development in March 1993, July 1995, and December 1996. In December 1997, the Board determined that there was no new and material evidence to reopen the claims for service connection for residuals of a right eye injury, a back disorder, a disorder manifested by multiple joint pains, and tinnitus. The December 1997 Board decision also denied the claims for an increased evaluation for PTSD, an increased (compensable) evaluation for left ear hearing loss, and a total rating for compensation purposes because the veteran failed to report for VA scheduled examinations without good cause. The veteran then appealed the December 1997 Board decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court). He also appointed Jeffrey Wood, attorney at law, to represent him before the Court. In June 1999, the Court granted an unopposed motion from the Counsel for the VA Secretary to vacate and remand the Board's December 1997 decision with regard to the issues of entitlement to an increased evaluation for PTSD, entitlement to an increased (compensable) evaluation for left ear hearing loss, and entitlement to a total rating for compensation purposes based on individual unemployability. In the June 1999 order, the Court held that the application to reopen claims for service connection for residuals of a right eye injury, a back disorder, a disorder manifested by multiple joint pains, and tinnitus was abandoned because the veteran had failed to pursue these matters. Buckinger v. Brown, 5 Vet. App. 435, 436 (1993). The June 1999 Court order also ordered the Board to adjudicate the issue of the veteran's entitlement to fee basis medical examinations from private sources. The case was thereafter returned to the Board. In a September 1999 letter, the Board asked the veteran's attorney whether he would represent the veteran before VA and whether he wanted to submit additional argument and/or evidence. In a December 1999 letter, the attorney notified the Board that he had been authorized by the veteran to represent him before VA with regard to the issues of entitlement to an increased evaluation for PTSD, entitlement to an increased (compensable) evaluation for left ear hearing loss, and entitlement to a total rating for compensation purposes based on individual unemployability. The attorney also requested that the case be remanded to the RO for additional action and to have the veteran undergo pertinent medical examinations in accordance with the instruction of the Court in the June 1999 order and the requests of the Counsel for the VA Secretary in the unopposed motion. REMAND Copies of the unopposed motion from the Counsel of the VA Secretary, the June 1999 Court order, and the December 1999 letter from the attorney have been placed in the veteran's claims folders. After review of the record and Court instructions, evidentiary development and adjudication action is required, as detailed below. In a July 1997 letter, the VA Outpatient Clinic in Winston- Salem denied the veteran's request for fee-basis medical examinations from private sources. A letter from the veteran dated July 24, 1997, constitutes a notice of disagreement with this determination. A review of the record indicates that the issue of entitlement to fee-basis medical examinations from private sources has not been made the subject of a statement of the case, and it should be. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). A review of the record also indicates that the veteran's attorney has not been explicitly authorized to represent the veteran before VA with regard to this claim. In view of the above, the case is REMANDED to the RO for the following actions: 1. The veteran should be sent a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion. He should be asked to submit this information within 30 days. 2. The Veterans Health Administration facility having jurisdiction should readjudicate the veteran's claim for fee- basis medical examinations from private sources. If the decision remains adverse to the veteran, the RO should clarify the veteran's representation with regard to this claim and send the veteran, and any representative that he may choose with regard to this matter, an appropriate statement of the case that includes the provisions of 38 U.S.C.A. § 111 and 38 C.F.R. §§ 17.143, 17.144, and 17.145. The veteran and any representative should be notified that a substantive appeal must be filed within 60 days with regard to this issue in order have the Board consider it with this appeal. 38 C.F.R. § 20.302(c) (1999). 3. The RO, after discussion with personnel at the Veterans Health Administration facility having jurisdiction, if fee-basis examinations are denied, should advise the veteran of his options, such as transportation at VA expense or through non-VA providers (if available) and limitations, including the amount VA will pay, with regard to transportation to a VA medical facility or facilities for required medical examinations. 38 U.S.C.A. § 111 (West 1991 & Supp. 1999); 38 C.F.R. §§ 17.143(c)(1)(transportation at government expense for scheduled compensation examinations) and (d)(1)(transportation of attendant when this is determined to be necessary), 17.144 (limitations), and 17.145 (requirement that travel arrangements be approved in advance) (previously 17.100, 17.101, and 17.102, reclassified as of May 13, 1996). Examinations: If the following examinations are obtained from fee-basis providers, the RO should coordinate with VHA and review the reports carefully to ensure that they are medically and legally sufficient for rating purposes. 4. The veteran should be scheduled for a social and industrial survey, focusing on the effects of his service-connected disabilities on his ability to work. The veteran's claims folders must be made available to the examiner for review prior to the interview and the examiner should offer an opinion on what effect the veteran's service-connected disabilities (PTSD, chondromalacia of the knees, and left ear hearing loss) have on his ability to work. 5. The veteran should be scheduled for a psychiatric examination to determine the severity of his PTSD. The psychiatrist must assign a GAF (Global Assessment of Functioning) score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders Fourth Edition (DSM-IV). The examination report should address the old and new rating criteria in detail. The veteran's claims folders must be made available to the psychiatrist prior to the examination and he or she should offer an opinion on what effect the veteran's service-connected disabilities have on his ability to work. 6. The veteran should be scheduled for an appropriate audiological evaluation to determine the severity of his left ear hearing loss. The veteran's claims folders must be made available to the examiner prior to the evaluation and he or she should offer an opinion on what effect the veteran's service-connected disabilities have on his ability to work. 7. The veteran should be scheduled for a VA orthopedic examination to determine the severity of his service-connected chondromalacia of the knees. The veteran's claims folders must be made available to the examiner prior to the examination and the physician should offer an opinion on what effect the veteran's service-connected disabilities have on his ability to work. 8. After the above development, the RO should review the issues of entitlement to an increased evaluation for PTSD, an increased (compensable) evaluation for left ear hearing loss, and a total rating for compensation purposes based on individual unemployability. If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to the veteran and his attorney. The veteran and his attorney, and any representative chosen with regard to the veteran's claim for fee-basis medical examinations from private sources, should be afforded the opportunity to respond to the supplemental statement of the case and statement of the case before the file is returned to the Board. 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). 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. J. E. Day 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).