Citation Nr: 0809860 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-36 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an evaluation in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the New York, New York Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND VA's statutory "duty to notify" under the VCAA requires that VA notify a claimant of which portion of the information and evidence, if any, is to be provided by the claimant and which portion, if any, will be obtained by VA. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). VA is also required to notify a claimant of the evidence needed to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. It was further noted that regarding the disability-rating element, in order to comply with section 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided, that is necessary to establish a disability rating for each of the disabilities contemplated by the claim and allowed under law and regulation. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Although correspondence from the RO to the veteran dated in September 2005 discussed the "duty to notify" provisions of VCAA and the evidence needed to substantiate his claim for an increased rating, the letter did not discuss the need to submit evidence that showed the effect of the disability on the claimant's employment and daily life. Additionally, the letter did not discuss the specific criteria listed in Diagnostic Code 9411 required for an increased rating for PTSD. The Board notes that the veteran's last VA compensation and pension examination for his PTSD was in October 2005. The veteran essentially asserted in his November 2006 VA form 9 that manifestations of his service-connected PTSD had increased in severity since his prior exam. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2007), an examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See also 38 C.F.R. § 3.159 (2007). Also, during the VA compensation and pension examination in October 2005, the examiner opined that given the veteran's advanced age and impaired concentration, he appeared to be unemployable. In the same examination, the examiner reported that the veteran retired from his job with the local highway department in 1985 at age 62. The examiner's statement raises the issue of entitlement to an extra-schedular rating for his service-connected PTSD. Additional development should be undertaken, to include providing the veteran with notice of the evidence required to substantiate a claim for an extraschedular rating, what evidence he should submit, and what evidence VA will obtain. See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159 (2007). This should include, but not be limited to, notifying the veteran that he should submit documentation of time lost from work and statements from supervisors and/or co-workers concerning interference with employment associated with his PTSD, as well as statements from potential employers showing the veteran's attempts to secure employment. Finally, notice should be given to the veteran concerning effective dates as they relate to the potential assignment of an extraschedular rating for his service-connected PTSD. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the AMC/RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002), 38 C.F.R. § 3.159 (2007), and Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008) are fully complied with and satisfied. Notification to the veteran should include an explanation to the veteran as to the information or evidence needed to substantiate a claim for an extraschedular rating under 38 C.F.R. § 3.321(b) for his service-connected PTSD and an explanation as to the information and evidence needed establish an effective date for an extraschedular rating. After the veteran has been given notice as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), he should be given the opportunity to respond. 2. The AMC/RO should obtain the names and addresses of all medical care providers who treated the veteran for PTSD since July 2006. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. The veteran should be requested to indicate whether he is currently employed or has recently attempted employment. If he is employed, he should provide documentation from his employer describing any marked interference with employment, including accommodations made for him by the employer, and a report of the sick leave he has taken. If in order, the veteran should provide documentation of all periods of hospitalization necessitated by the PTSD. If he is no longer employed, the veteran should provide documentation of the reason(s) he is no longer employed. 4. After all available records and responses from each contacted entity have been associated with the claims file, the RO should arrange for the veteran to undergo a psychiatric examination for his PTSD at an appropriate VA medical facility. The entire claims file must be made available to the psychiatrist or psychologist performing the examination. The examination report should include discussion of the veteran's documented medical history and assertions, as well as an occupational and social history. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all evaluation/examination findings, along with the rationale for any conclusions reached. Following a review of the record and interview and evaluation of the veteran, the examiner is to indicate which of the following paragraphs (a), (b), (c), or (d), best describes the degree of impairment caused by the PTSD: (a) Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or (b) Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; or (c) Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; or (d) Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The examiner should render a multi- axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the veteran's anxiety and depression, and an explanation of what the score means. Additionally, the examiner should express an opinion regarding the extent to which the veteran's PTSD alone affects his employability. 5. The veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 6. After completion of the above and any additional development deemed necessary, any issue remaining on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2005). _________________________________________________ RENÉE M. PELLETIER 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) (2007).