Citation Nr: 1456000 Decision Date: 12/19/14 Archive Date: 12/24/14 DOCKET NO. 11-33 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 30 percent for an anxiety disorder, not otherwise specified (NOS), claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to October 1966. This matter comes on appeal before the Board of Veterans' Appeals (Board) from November 2009 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2013, the Board denied the claim on appeal. The Veteran appealed the February 2013 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2014 memorandum decision, the Court set aside the Board's decision and remanded the claim to the Board for further proceedings consistent with the memorandum decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Currently, the medical evidence relating to the Veteran's psychological symptoms consists of three items: July 2009 and October 2009 reports from R.J.O., Ph.D.; and the report of a November 2009 VA compensation and pension examination. Within the November 2009 VA examination report, the examiner indicated that he had reviewed the claims file. However, he also specifically indicated that he had not reviewed any private medical reports. As at least the July 2009 report from Dr. O. was ostensibly of record at the time of the November 2009 VA examination, the indication that the claims file was reviewed, yet private medical reports were not, appears to be inherently contradictory. In the July 2014 memorandum decision, the Court expressed concern with this contradiction (see July 2014 memorandum decision, p. 3) and remarked that in light of contradictory information the Board is required to return a medical examination for clarification or explain why such action is not necessary. See Vazquez-Flores v. Peake, 22 Vet.App. 37, 50 (2008), vacated on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); see also Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming the Court's remand to the Board for clarification as to the import of evidence, holding that "clarification ... can take the form of an explanation from [the examining doctor] of his opinion, or if necessary supplemental medical evidence"). On remand, if he is still available, the November 2009 VA examiner should clarify if the July 2009 and October 2009 reports from Dr. O. were reviewed in conjunction with his examination. The Board additionally notes that the November 2009 VA examination report represents the most recent medical evidence of record which addresses the Veteran's psychiatric symptoms. Although the mere passage of time alone does not render an examination inadequate, the Veteran's last examination in this case was performed over five years ago, and given the contradictions present between the July 2009 and October 2009 reports from Dr. O. and the prior November 2009 VA examination report, the Board concludes that a more recent VA examination is warranted so that the present level of the Veteran's service-connected disability may be evaluated. Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007) (noting that "the mere passage of time alone does not render the previous examination inadequate"); Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (noting that where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern). In this regard, because there has been no medical information added to the claims file since the November 2009 VA examination report which addresses the Veteran's psychiatric symptoms, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Additionally, both the July 2009 and October 2009 reports from Dr. O. have an additional note stapled to them which reads as follows: BVA, As per discussions w/RO 317 Rating Specialists, Decision Review Officers, and their reviews, they indicate that this private examiner has a known history of assigning much lower GAF scores as opposed to VA Mental Health C&P examiners, and as such do not assign greater probative value to the examiner's assessments. R. Epps VFW ACCRED. REP. The Veteran has asserted that he was unaware of these notes placed in between his medical reports until after he appealed the February 2013 Board decision. He has argued that he has not had an opportunity to rebut this negative notation evidence. See Cushman v. Shinseki, 576 F.3d 1290, 1300 (Fed. Cir. 2009) (finding a violation of a constitutional right to a fair hearing where the Board considered an altered medical record). On remand, the Veteran must be given an opportunity to rebut this negative notation evidence. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter informing the Veteran of the notes attached to the July 2009 and October 2009 reports from Dr. O., his December 2009 notice of disagreement, and his December 2011 VA form 9 signed by "R. EPPS VFW ACCRED. REP." Invite the Veteran to submit additional evidence regarding these notes. Allow the Veteran an appropriate amount of time to respond. 2. With any necessary authorization from the Veteran, obtain all of his outstanding psychiatric treatment records, to particularly include all available psychiatric records dated since November 2009. All attempts to locate these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2014); 38 C.F.R. § 3.159(e)(1) (2014). 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA examination, by a psychiatrist or psychologist, at a VA medical facility. If possible, this examination should be conducted by the VA examiner who performed the November 2009 examination. If the November 2009 examiner is available, he should clarify if he reviewed the July 2009 and October 2009 reports from Dr. O. in conjunction with his prior examination. Concerning the present examination, the entire claims file must be made available to the individual designated to examine the Veteran, and a report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's psychiatric symptoms, and an explanation of what the score means. The examiner is further requested to indicate if the Veteran's psychiatric symptoms have resulted in total occupational and social impairment. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed, (typewritten) report. 4. Then, after ensuring that all requested development has been accomplished, readjudicate the Veteran's claim for an increased rating based on a de novo review of the record. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. 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 2014). _________________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).