Citation Nr: 1237201 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-06 409 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran had active duty service from September 1943 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned the Veteran a 30 percent initial rating, effective July 9, 2004. The Veteran has appealed the assigned initial rating. The Board previously denied the Veteran's claim for a higher initial rating for PTSD in an August 2010 decision. The Veteran subsequently appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In a January 2012 memorandum decision, the Court vacated the Board's decision and remanded the matter on appeal to the Board for further proceedings consistent with its decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(2). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board initially notes that nearly five years have passed since the Veteran's most recent VA psychiatric examination in August 2007. The most recent treatment records associated with the claims file pertain to VA treatment received by the Veteran four years ago in October 2008. Given the length of time that has passed since the last VA examination, and in the absence of other contemporaneous treatment records, the Veteran should be arranged to undergo a new VA psychiatric examination to assess the current severity of his PTSD. Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination that is too remote for rating purposes cannot be considered contemporaneous). As noted in the Court's memorandum decision, the Board must consider the additional effects resulting from the Veteran's PTSD medications in adjudicating whether the Veteran's PTSD symptomatology warrants consideration of an extra-schedular rating, and possibly, additional and separate disability ratings under other diagnostic codes for symptoms that are not already contemplated by the diagnostic code that has been applied in rating the Veteran's PTSD. In reviewing the record, the Board notes that VA treatment records dated as early as January 2007 reflect complaints of sleep difficulties which treating physicians appeared to attribute to the Veteran's psychiatric medications. During the Veteran's August 2007 VA examination, the examiner noted that medications at that time consisted of effexor, seroquel, and remeron. According to the examiner the Veteran was experiencing side effects from these medications which included drowsiness, fatigue, sexual dysfunction, dizziness, and hand tremors. The Board also notes that, at the time of the August 2007 VA examination, the Veteran had multiple non-service-connected medical problems including coronary artery disease, peripheral vascular disease, sleep apnea, diabetes mellitus, and hypothyroidism. Given the extent and nature of the Veteran's medical disorders, the Board finds that it is unclear as to whether the symptoms noted above are actual side effects of the Veteran's psychiatric medications, or, whether they are attributable to the Veteran's non-service-connected disorders and treatment. The Board notes that symptoms of sleep disturbance have already been considered as part of the Veteran's symptomatology in rating his PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. However, as pointed out by the Court in its memorandum decision, the Veteran's symptoms of drowsiness, fatigue, sexual dysfunction, dizziness, and hand tremors could serve as bases for consideration of an extra-schedular rating for the Veteran's PTSD, or, may also be rated separately under other diagnostic criteria. To that end, the examiner designated to perform the Veteran's new VA examination should offer an opinion as to whether such symptoms are side effects of the Veteran's medications for treatment of PTSD, manifestations of the Veteran's non-service connected medical disorders, or side effects of medications taken by the Veteran for his non-service connected disorders. As pointed out by the Court in its memorandum decision, the August 2007 VA examination report reflects Axis I diagnoses of PTSD and depressive disorder, not otherwise specified (NOS). In the report, the VA examiner offers the opinion that the Veteran's PTSD and depressive disorder, NOS appear to be independent of one another and are each maintained by different factors. In that regard, the examiner appears to even differentiate the symptoms attributable to the Veteran's PTSD from those attributable to his depressive disorder, NOS. In conducting the Veteran's new VA examination, the VA examiner should comment upon this opinion. If the VA examiner concurs with this opinion, then the examiner should be asked to differentiate those symptoms which are attributable to the Veteran's PTSD from those which are attributable to his depressive disorder, NOS. Prior to arranging the examination detailed above, relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide the name and addresses for all medical care providers, both VA and private, who have provided psychiatric treatment to him since October 2008. After securing the necessary release, the RO/AMC should request any identified records which are not duplicates of those already contained in the claims file. If any requested records are not available, the Veteran and his representative should be notified of such. 2. The Veteran should be afforded a VA mental disorders examination to determine the current nature and severity of his PTSD. The claims folder should be reviewed by the examiner in conjunction with the examination. All symptomatology of the Veteran's PTSD should be reported and a Global Assessment of Functioning score should be assigned. The examiner should also comment upon the previous findings from the August 2007 VA examination, and in particular, provide opinions as to the following questions: a) Were the symptoms of drowsiness, fatigue, sexual dysfunction, dizziness, and hand tremors, as reported by the Veteran during his prior August 2007 VA examination, side effects of his medications for PTSD, or, are they instead attributable to the Veteran's non-service-connected disabilities or to medications taken by the Veteran for his non-service-connected disabilities? b) Does the Veteran currently have any symptoms that are side effects of his medications for PTSD? c) Does the examiner concur with the diagnosis provided in the August 2007 VA examination report, in that the Veteran has an additional Axis I diagnosis other than PTSD? If so, is there an etiological relationship between this additional Axis I diagnosis and the Veteran's PTSD? d) If there is no etiological relationship between the additional Axis I diagnosis and PTSD, can the symptoms attributable to the additional Axis I diagnosis be differentiated from those attributable to his PTSD? 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. In readjudicating the Veteran's claim, the RO/AMC should consider whether the Veteran is entitled to an initial disability rating in excess of 30 percent for PTSD, on both a schedular and extra-schedular basis. Also, the RO/AMC should address whether any separate and additional disability ratings are warranted for any side effects from the Veteran's PTSD medication. If the benefit sought remains denied, the Veteran and his representative, if any, should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).